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If Our Medical Expert Doesn't Have All the NECESSARY Medical Records to Reach a Correct Conclusion About Your Case, What Effect Will That Have on Your Lawsuit?

The short answer is...a lot.

Here's what I mean.
You believe your doctor screwed up.
You believe he was careless and caused you harm.

You now are deciding whether to sue him.
As the days and weeks go by, you realize you need to speak to an attorney.
About whether you have a good medical malpractice case.

In New York, you are REQUIRED to have a medical expert review all your records to confirm you have a valid case.
Otherwise, you are prohibited from filing a medical malpractice lawsuit on your behalf.

Our medical expert must determine:

(1) Whether your doctor violated the basic standards of medical care,
(2) Whether your doctors' wrongdoing was a cause of your injuries and
(3) Whether your injuries are signficiant and/or permanent.

You THINK you have a good case, but you're not sure.
You find an experienced attorney to help answer your question about whether you have a valid case.
The first thing your lawyer will do after talking with you is reach out to your doctors and hospitals to get copies of your medical records.

In order to do that you will sign permission slips that give your lawyer permission to get copies of your records.
Your attorney sends your permission slip along with a cover letter to the doctor's office or the hospital.
The cover letter basically says "We represent Mrs. Jones. Please provide us with certified copies of her records."

A few weeks later we get a response back from the doctor's office.
There are 350 pages of records to copy.
Please send up $300 for copying costs and we'll send them to you.

We do this for every doctor and hospital you went to.

Once we obtain all of the necessary records, I will review each page of your medical and hospital record.
I need to know exactly what's contained in this records before I send them out to my expert.
This way I can have an intelligent discussion with my expert when he calls to tell me he's reached a conclusion about whether you have a good case.

I send the expert all the records I obtained.
Weeks later, my expert calls me and tells me that you have a good case.
Good.

Now I let you know that we can go ahead and file a lawsuit on your behalf.

What happens though if my expert gave me his conclusion and opinions without reviewing ALL of the necessary and relevant medical records?

A lot.

That means my expert has give a conclusion that is deficient.
There's a gaping hole.
You can be sure that the defense attorney will exploit this deficiency during cross examination at trial.

CROSS EXAMINATION OF MY MEDICAL EXPERT AT TRIAL

"Dr. Jones, tell me what medical records you reviewed to reach your conclusions," the defense lawyer asks.
"Ok, I reviewed Dr. Shmendrick's record. Dr. Bumblefook's record. Dr. Duck's record and also the Hospital record," my expert says.

"Did you review Dr. I Can't Believe it's Not Butter's record?" the defense lawyer asks with intense curiosity.
"Uh no, I didn't," the expert says.
"Doctor, I want you to assume that contained within Dr. I Can't Believe it's Not Butter's record that this patient complained of the following things...I also want you to assume that he told her to do X, Y and Z. Do you agree that would be important for you to know when evaluating whether the treatment in this case was appropriate?" he asks accusingly.

If the doctor is on the up-and-up and no-nonsense, he will likely say "Yes, it would have been important for me to know that information while reviewing this case," my expert says while quietly glaring at me out of the corner of his eye.

"The reason these facts would be important for you to know is that had you known these facts at the very beginning of your expert evaluation, you'd agree that your conclusion and opinion would be different than what you have testified about here today, correct?"

Again, assuming this expert is honest, he will likely have no choice but to admit "Yes, had I known this at the beginning of the case, my opinon would be different," he says quietly.
The defense lawyer doesn't let him off the hook so quickly.
"HOW WOULD YOUR OPINION BE DIFFERENT DOCTOR?" the defense lawyer asks, knowing exactly what the answer will be.

"My opinion is that there was no malpractice here," the expert says dejectedly, not believing he's just been humiliated because he didn't have all the necessary records to make an educated decision about whether the treatment was appropriate in this case.

To learn more about cross examination strategies, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer