You've sued your doctor.
You believe he was careless.
You believe his carelessness caused you harm and injury.
Your injuries are permanent.
You believe your doctor was a drunk.
You believe he operated on you while drunk.
You believe he was under the influence of alcohol during your surgery.
Your attorney does not have hard proof that he was drunk.
He's trying to find hospital witnesses who will testify about your doctor's drinking habits.
He's trying to find documents that the hospital administration knew or should have know about your doctor's harmful alcohol abuse.
Your attorney requests your doctor's employment file from the hospital.
They argue it's irrelevant to the malpractice issues.
Your attorney has claimed in your lawsuit that the hospital was negligent for hiring this doctor based upon his past history.
Your attorney has argued that he needs to see your doctor's employment file in order to confirm that the hospital was careless in hiring your doctor.
The hospital argues that his employment file is privileged.
They want us to take their word that what they are saying is true.
Remember the phrase 'Trust but verify'?
It applies in every type of civil lawsuit here in New York.
Your attorney has a nagging suspicion that there is damaging information in there that will destroy their defense.
Your attorney believes, actually it's more than a hunch, that the hospital has documented many instances of this doctor's alcohol abuse while on duty.
Your attorney has spoken with a number of people associated with the hospital, off the record.
They all confirm that your doctor was an alcoholic.
They all believe that the hospital did nothing to stop your doctor from practicing medicine at this hospital.
However, none of them are willing to come forward publicly to confirm that.
Doing so would risk their livelihood.
Doing so would get them fired.
The only way he can do that is by having the judge order the hospital to turn them over.
The only way to get the judge to turn them over is if your attorney can tell the judge what is contained within those records.
That brings us to a Catch-22 situation.
Your attorney does not know exactly what is in those records.
That suspicion alone is insufficient to get a judge to order the hospital to turn over those records.
Your attorney does not have actual proof from hospital employees that the hospital knew or should have known of this doctor's alcohol propensity.
The only legal alternative is to ask the judge to perform a private review of your doctor's employment records.
Your attorney must lay out his suspicions for the judge.
Your attorney must explain the importance and significance of those records in order to get the judge to agree to review those records privately.
In many cases the judge will agree to review records privately.
Legally speaking, this is known as an in-camera review.
No, it has nothing to do with cameras.
Instead, it has to do with the judge reading over these records and making a decision about whether we are more likely right than wrong that these records should be disclosed.
If the judge agrees to review these records privately, he will order the hospital to turn over the doctor's entire employment record by a certain date.
Once the judge has received those records, he will review them.
A short while later, the judge will render a decision that tells us whether those records should or should not be disclosed.
If the judge decides that the employment records have nothing to do with the issues being raised or the defenses being raised, then that ends the matter, unless of course your attorney decides to appeal the issue to a higher court.
An in camera review can be an essential tool to help an attorney obtain records that the other side is refusing to produce.
Imagine if the doctor's employment records contained information that confirmed your lawyer's suspicion that hospital administration knew about your doctor's alcohol abuse. Imagine that the hospital had disciplined your doctor on more than one occasion. Imagine hospital big-wigs knew your doctor had operated on patients while under the influence of alcohol.
When the judge releases those records, the defense knows that this case is over.
That explains why they did everything possible to put up every legal roadblock and prevent you from getting a copy of your doctor's employment records.
Once those records are delivered to your attorney, the best course of action is to enter into settlement negotiations.
They likely have no choice but to settle this matter at an early stage rather than taking your case to trial.
An in-camera review is a perfect tool to use when the defense refuses to turn over records.
The judge knows that if he agrees to review records privately, it adds a significant amount of time to review them which obviously takes away time dealing with other cases.
If the issue is minor, there is the possibility that the judge will refuse to review the records.
In this instance, where so much of the claim hinges on the hospital's negligent hiring of this physician, in all likelihood the judge would agree to review those records and come to his own independent conclusion about whether these employment records are relevant to the claims being made.