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Some Pages are MISSING From Your Hospital Chart. Good Thing You Photocopied Parts of Your Chart While You Were a Patient in the Hospital. Can You Use Those Photographed Pages at Your Medical Malpractice Trial?

MISSING MEDICAL RECORDS

You might, but then again, you might not.

Here's the scenario...

You had surgery with a doctor you loved.
He convinced you that you needed this surgery.
You trusted him.

You signed those consent forms and agreed to have the surgery.
Everything was going well.
The anesthesiologist put you to sleep and when you awoke, you were in the surgical intensive care unit.

Tubes were coming out of every part of your body.
Monitors were hooked up to every part of your body.
You couldn't move.

You were in agonizing pain.
Days later you're moved to a 'regular' floor in the hospital.
You learn that your doctor had a 'problem' during your 'routine' surgery.

He called it a "complication."
"This happens from time to time," he said.
"Don't worry, we'll get you fixed up and home as soon as we can," he said reassuringly.

Days turn into weeks.
The nurses are not answering your questions with straight answers.
The doctors who visit you each morning keep passing the buck off to your treating surgeon.

You get the feeling that your surgeon doesn't want to tell you the truth about what really happened.
That gets your spidey-sense up. (A spiderman reference if you didn't know.)
You're finally able to get up and walk around on your own.

You're still hooked up to IV's, antibiotics and a cardiac monitor.
One night, when you can't sleep and are roaming the floor, you pass by the nurses station.
It just so happens, this unit still has not shifted to electronic medical records yet.

They're still using paper records.
There are no nurses at the nurses station.
You look around wondering where they all went.

You see your medical chart sitting on the desk, plain as day.
You're curious.
You want to see what's in it.

You want to see what your doctor wrote about what happened to you.
You hustle over to the desk and quickly flip open your medical record.
You're hurriedly looking for medical notes about your surgery and from your surgeon.

You find a few and don't really have time to read the chicken scratch.
What do you do?
You take out your phone and start snapping photos of your own medical record.

Page after page.
You're racing against the clock.
You're wondering when the nurses will return and catch you photographing your OWN chart.

Nobody returns in the time it takes you to photograph ten pages.
You flip your chart closed and then hobble back to your room along with your IV pole, medications and cardiac monitor.
Once in bed, you open up your phone and try reading.

Forty five minutes later, you think you've been able to decipher those ten pages.
You think you have a smoking gun here.
You think your doctor admitted he screwed up during your surgery.

You're wondering what to do now.
You want to tell someone.
You want to find someone who can help you.

You go back to sleep hoping this is just a bad dream.
When you awaken, you realize it wasn't a dream.
This is as real as it gets.

You finally are discharged home days later.
You need visiting nurses on a daily basis.
You need a home health aide.

Two months later, you're on your own.
You've healed well and are making progress.
One night, while watching TV, you see an attorney commercial.

It's corny but gets you wondering.
Could your doctor have been careless?
Is that why you suffered this "complication?"

You decide to reach out to an attorney who handles surgical malpractice cases.
Definitely NOT someone who advertises on TV.
That's not the kind of lawyer you want.

You want a high-priced lawyer.
With fancy offices in Manhattan.
With lots of lawyers and support staff.

You find a law firm in NYC online.
They offer to meet you in your home.
"We'll take care of everything," the attorney says when he shows up in your home in a three-piece suit.

After investigating your case and having a board certified medical expert review your medical records, your expert confirms that your surgeon was careless and his wrongdoing caused your injuries. There's no question that your injuries are significant and permanent.

Your medical expert asks your attorney "Hey, do you have these pages in your copy of the hospital record? I can't find them anywhere," he says. Your attorney checks his copy of your records and says "No, I don't have them either."

"That's strange," he thinks.
Your lawyer reaches out to the hospital and requests just those 'missing' ten pages.
Weeks later the hospital medical record department replies.

"We've searched and are unable to locate the pages you refer to."
Your lawyer thinks "Ok, not a big deal. We can still prove your case without those missing pages. Besides, whatever was in them, can't be that important."

Your attorney never broaches the subject with you.
As weeks turn into months and the years go by, you forget all about those medical record pages you photographed that one quiet night so long ago.
Your lawsuit is never-ending.

Your doctor has disputed all your claims.
He denies doing anything wrong.
He denies causing you harm.

He also denies that your injuries are that bad.
"We'll see you at trial," his lawyer tells your lawyer.
In preparation for your trial, your attorney has you come into his office.

He's going to go over the types of questions he's going to ask you when you take the witness stand.
He's also going to show you the types of questions you'll be asked on cross-examination.
This preparation session takes a while.

A few hours.
During that time, your attorney tells you about the evidence he's going to try and get admitted.
He tells you about the medical records he must get admitted in order for your medical experts to testify.

"Hey, I just remembered something!" you say.
You quickly pull out your phone and start searching your photo album.
It takes you a few minutes but you finally find it.

"I got it!" you exclaim to your attorney.
"You got what?" he asks bewildered.
You proceed to tell him about the ten pages you photographed at the nurses station that quiet night so long ago.

He immediately asks you to email it him, while you are sitting in front of him.
He gets it and quickly prints out those ten pages.
He starts reading.

"This is great!" he tells you.
"This is awful!" he also tells you.
"Shit! he exclaims. "We may not be able to use this!" he says with frustration.

You want to use it to spring a trap on your surgeon at trial.
You want your attorney to ambush the surgeon with these records.
You want your attorney to confront your surgeon and have him contradict on the witness stand what's written in those medical records.

That's a nice wish list.
But it's not going to happen.
At least not the way you think it will happen.

THE MISSING RECORDS ARE FOUND!

"When did you photograph these?" your lawyer demands to know.
"How did you come to photograph these pages?" he asks.
"What did you do with the original chart after you finished taking these pictures?"

"Did you ever print out these pictures?" he wants to know.
"Did you ever remove the original pages from your chart after you took these photos?" he needs to know.
"Did you ever see any hospital staff remove any of these pages from your chart?" he demands to know.

"Do you have the original pages of these records?" he asks somewhat accusingly.
"No, of course not," you tell him sincerely.
"We've got problems," he tells you.

He then emails your medical experts the 'missing' ten pages and awaits word from each of them.
He's read the records and they reveal a lot.
Your lawyer explains that during your surgeon's pre-trial question and answer session, known as a deposition, your doctor kept referring to his notes that he made in the chart.

He couldn't explain where those notes were or what happened to them.
The hospital couldn't explain where they were either.
Neither side knew where they were or what was written in them.

Was there foul play?
Did someone intentionally remove those records?
What was contained in those records that someone might intentionally take them out.

Now, years later, those missing records, or at least photocopies of those exact missing records have now come to light.
Can you use those photographs to ambush the doctor when he's being cross examined at trial?
The answer is no, you can't.

The moment your attorney tries to use these, never-before-seen, hospital records to contradict your doctor's testimony, the defense will have apoplectic fits. There will be much screaming, yelling and objecting. The defense lawyer will argue, correctly, that he has never seen photographs of the missing records. He doesn't know what's contained in these records and has never had an opportunity to have the doctor read those records prior to trial.

Trial by ambush went out the window more than forty years ago in New York.
Just not happening.
Then, the defense will argue whether these photos are in fact authentic.

Then he will insinuate that you, the injured patient, somehow made those original ten pages disappear.
"Judge, how do we know that it wasn't the patient who removed these records after photographing them?" he will argue.
Then, your lawyer will have to rebut that argument...hopefully with some proof and not just say "He's not that kind of person."

To summarize...

The defense will want to know

  1. Are these photos authentic?
  2. Are these photos 'doctored'?
  3. Where are the originals?
  4. Why weren't they turned over to us years ago, during the course of the litigation?
  5. Who removed the original records from the hospital chart?
  6. What's actually contained in those notes?
  7. Are those really the surgeon's notes?
  8. Are they in his handwriting?
  9. Does he recognize his own notes?
  10. Does he remember writing this?
  11. Do these missing notes refresh your surgeon's memory about what he wrote?

There are many more unanswered questions.
The fact that you only 'remembered' them now, hightens the suspicion that you intentionally withheld them.
Regardless, you argue "But these are the doctor's own handwritten notes!"

Maybe yes, maybe no.
Will the judge allow your attorney to use these new-found notes to cross examine your surgeon?
Maybe yes, maybe no.

But you now have a bigger problem.

Your lawyer finally hears back from your medical experts.
They have now read every single word of every single page of these 'missing' records.
The news it NOT good.

"Had I known this information at the beginning, when I first reviewed your records, I'd have told you that there's no basis to go forward with a lawsuit," one surgical expert tells your attorney. "I'm sorry, but the surgeon clearly explains what happens and assuming this is true. there's no way he did anything wrong. I never saw these before today. I wish I had," he explains sympathetically.

"I can't support your claim now," he says quietly.

A few hours later, your other medical expert says the same exact thing that your first expert said.
"Had I known this information at the start, I would have told you that you didn't have a leg to stand on. Nothing was done wrong," he tells your attorney with finality.
Your attorney is furious.

With you.
For not telling him about these photos.
For not telling him about your late-night excursion copying your medical records.

Maybe if your attorney shared with you the information about the missing records earlier, this would have come to light sooner.
Who knows.
The problem is that your lawyer can't go forward.

Without a medical expert to support your case, you are prohibited from prosecuting your medical malpractice lawsuit here in New York.
You're now screwed.
Your lawyer, on the eve of trial, asks the judge to mark your case off the trial calendar and to be relieved as your attorney.

He has no choice.
As soon as he does that, the defense knows something's up.
No attorney tries to wiggle out of a trial unless something bad has happened.

Especially after prosecuting your case for so many years and investing so much time and money into your case.
You thought you had a smoking gun here.
You thought those records would help you in your lawsuit.

Turns out it had the opposite effect.

To learn more about missing hospital records, I invite you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer