It may seem like a dream. Last year, you remember going to the emergency room after your car accident and being discharged shortly thereafter, having been told by your physician that your headache was related only to the whiplash you suffered. Your condition, however, continued to deteriorate, and you began suffering from severe migraines, dizziness, and loss of memory. After consulting with your personal doctor, who performed a brain scan, you learned that you actually suffered from mild traumatic brain injury as the result of the accident, and because this injury was left untreated at the emergency room, this caused the swelling in your brain to increase and contribute to the severity of your injury. After retaining a Long Island personal injury and medical malpractice attorney to litigate your claims, your attorney notices something interesting; your hospital records show a diagnosis of mild traumatic brain injury, but you know this was not the case. What can be done!?
Medical Malpractice Claims and Record Keeping
As you can imagine, the key to most personal injury and medical malpractice claims lies in your medical records. For example, if you suffered a knee injury in a car accident, it will be important to produce both your general health records that show you have never suffered from such an injury before and your hospital records, which indicate a severe knee injury only hours after your car accident. This helps to prove causation between the accident and your injuries. However, because misdiagnosis claims are among the most common reasons for bringing a New York medical malpractice action, what happens when, after reviewing your medical records, you notice a “diagnosis code” that wasn’t there before? In the example set forth above, what can you say to a judge in the face of medical records that are inaccurate but would, if accepted, completely contradict your claims that you were never diagnosed with a traumatic brain injury? In legal circles this is called “spoliation of evidence,” and sadly, it is more common than you think.
Spoliation of Evidence in New York
Spoliation of evidence is generally considered to occur when a party to the litigation intentionally or negligently destroys, loses, or alters evidence in a case. There are remedies for such spoliation, and their severity depends on how such spoliation will affect the wronged party’s ability to either prosecute or defend the action. These include:
- Creating an inference in favor of the non-spoliating party;
- Barring the evidence from use by the spoliating party;
- Striking the relevant pleading;
- Dismissing the action or granting summary judgment in the non-breaching party’s favor, and/or;
- Imposing monetary sanctions on the breaching party or attorney.
Your attorney can advocate for the remedy he or she believes will best suit the needs of the case, but it is ultimately up to the judge to determine the remedy for spoliation.
Proving Alteration of Medical Records in Malpractice Litigation
In order to prove actual spoliation of evidence, as opposed to simply negligent record keeping, in a medical malpractice case, the court generally requires proof that the medical records were physically changed between the original date on which they were finalized and when you discovered the alteration. For this reason, it is essential that you order your complete medical records from the medical provider or facility at issue as soon as you believe you may have a claim for malpractice. It is also important to obtain the records before you put a facility on notice that you may have a potential claim against them, which may prevent alteration of the records to conform to a hospital’s defense.
Contact Giuffré Law Offices, P.C. about Potential Spoliation of Evidence
If you believe that your medical records or other significant evidence was altered or intentionally destroyed by a medical facility or provider, you are not alone! Such practices are not uncommon in the face of a serious medical malpractice verdict, and it is important to contact a Long Island or New York City personal injury and medical malpractice attorney with experiencing detecting and handling spoliation of evidence cases. Giuffré Law Offices, P.C. has the experience and know how you need to protect you from spoliation. They work with Long Island’s top forensic document examiners to help prove your case and fight for your right to compensation. Contact them today at (516) 358-5300 or online for a free, no-risk consultation about your personal injuries.