The answer is "Maybe."

Let me explain...

During any type of injury lawsuit where an injured victim is trying to obtain compensation for all the harms and losses they suffered because of someone else's carelessness, your medical condition is always at issue.

We claim you were hurt badly.

The defense disputes that claim.

The defense says you weren't hurt that badly.

We get copies of your medical records.

At the beginning of your civil lawsuit here in New York, we send copies of your medical records to the attorneys who represent the people you have sued.

We then give them permission slips to request your records directly from the hospital or doctor. Those permission slips are known as 'authorizations'.

Why do they want to get their own copy of your medical records when I just provided them with a page-for-page copy of your medical and hospital records?

For the simple reason that they don't trust us. Plus, we like to think they enjoy making more work for themselves.

Ok, so now they have our copy of your medical records.

Then, the defense requests copies of your records directly from your doctors and the hospitals where you received treatment.

What happens if your case goes to trial?

Can we simply walk into court with our own copy of your medical records and try to admit those documents into evidence?

No chance.

The defense doesn't know if the copy is complete.

The defense doesn't know if changes were made.

The defense doesn't trust us.

Instead, they want to see that the records being admitted into evidence came directly from the doctor's office or from the hospital.

In fact, the defense wants to see a 'certfication' from the doctor's office or the hospital verifying that the records in court are certified as being accurate, complete and true copies of the patient's original record.

Only then will they agree to allow the medical record to be admitted into evidence.

But wait a second...

Is everything contained within those medical records relevant to the issues in this particular injury or accident case?

The answer may be 'no'.

Let me give you a perfect example...

Let's say it's a car accident case.

You were a passenger in a car being driven by your friend.

It's 8:00 pm and as you're going through an intersection, a careless driver blows through the stop sign and T-bones you and the car you were in.

You did nothing wrong.

You didn't contribute to the happening of this accident.

There are witnesses who confirm that the other driver went through a stop sign without stopping.

But you just came from a party for one of your co-workers. 

You had a few drinks. 

You were at the party for four hours.

The ambulance attendant notes that there's a distinct smell of alcohol on your breath.

The emergency room nurse notes that your eyes were bloodshot.

The emergency room doctor notes that your speech is slurred and assumes it's because of the number of drinks you had, never considering the possibility that it's the head trauma that is contributing to your slurred speech.

The defense has claimed that you are responsible for your own injuries.

The defense claims that you were drinking and that the jury should be allowed to hear about your alcohol intake that night before getting into your friend's car.

Before you jump to any conclusions and form an opinion in your own mind about whether the defense can make this claim, answer this question:

Even if it were true that you had a few drinks at a party, what does that have to do with you causing this accident?

The answer is: NOTHING.

You were a passenger.

You were NOT driving.

You were sitting in a car being driven by someone who was perfectly sober.

The fact that you may have had a few drinks at this party...what does that have to do with how the orthopedic surgeon will fix the bone sticking out of your leg? 

The fact that you may have had a few drinks at this party...what does that have to do with how your neurosurgeon will have to drain the blood in your skull and fix the skull fracture?

The answer is that is has NOTHING to do with any diagnosis and treatment in this scenario.

In this set of facts, there is case law in New York that clearly says that if the observations about your drinking; the smell of alcohol, your bloodshot eyes had nothing to do with the diagnosis and treatment of your fractures, then those observations and notes about those findings are not relevant to what the jury needs to see.

What does that mean?

It means that the medical witnesses should be prevented from discussing them at trial.

It means that the jury should not see those records that have those notations.

It means they are irrelevant.

What that really means is that if the judge agrees that these observations are not relevant for the jury to consider who caused this accident and the extent of her injuries, then the judge will likely allow your medical records to be admitted into evidence 'subject to redaction'.

That means that your medical records will be introduced into evidence, but before the jury is permitted to see and review them, the attorneys must remove those portions of the medical records that discuss the observations we talked about earlier.

To answer the question I posed at the beginning...

Can an attorney intentionally remove portions of your medical record at trial?

The answer is yes, but only after the court has agreed and approved of it. 

Then, when we do actually removed those pages we feel need to be removed, I must show my adversary exactly which ones I am removing. This allows him the opportunity to review and agree or disagree.

To learn even more about this topic, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer