Doctor May Have "Lost" Records, Do I Have Case

[dpmali]

My question involves medical malpractice in the state of: New York


I went for a cardiac stress test which was exercise and nuclear in origin to test before surgery. I got the all-clear, and when I had surgery, I had a heart attack a day later. The blockages were deemed to be long-standing, and now there is a questions as to why the stress test did not show the blockages. We have been trying for months to get the medical records of the nuclear test which should show the blockages, I am told, but the doctor will only produce the EKG results, we have even threatened the board of health.

My question is, if he claims he lost the nuclear test images or destroyed them somehow, do I still have a case? I have proof the test was done, and even literature from the doctor himself says I took the test. Can doctors simply destroy the evidence to get out of malpractice? I am 35 years old and because of him i lost 20% of my heart function.

[Mr. Knowitall]

Who is "we"? You and your lawyer? If so, I expect your lawyer has explained that the "loss" of medical records in this type of context does not translate into your automatically winning the case, but it's the sort of "coincidence" that can cause a lot of inferences to be drawn against the doctor who conveniently claims that he lost the records. It would be difficult for me to believe that a doctor lost both the images and any narration or report interpreting the images. (You can read a brief discussion of missing medical records, attributed by the defendant to mistake, in this case.)

[Gulskjegg]

I am not a lawyer, but I did see something on YouTube that you may be interested it. There is a guy on YouTube, his user name is "lawmed1" and he is a MedMal lawyer. He has a clip that covers the subject of lost documents.

He explains that you need to file a "lost document charge" against the doctor or opposing counsel. Now, he does not go into specifics, obviously, but in general he says that if someone "loses" *cough cough* important documents, all you need to do is establish that another person (medical secretary for instance) can attest that your paperwork was indeed sent in to the Court at some point, but was "misplaced".

The lawyer goes on to explain that the only reason such important documents would be "lost" is if they were harmful to the Defense. He then goes on to advise you to notify the court that the missing documents be given maximum weight and consideration in YOUR favor, in spite of their absence.

In the end it all comes down to irresponsible preservation of documents, at the very least, or malicious intent at the worst, and in either case the opposing party should pay a penalty for such irresponsible behavior.

For my own case, my chiropractor hand-carried my spinal x-rays to the opposing counsels office. The x-rays show blatant subluxation that even a lay-person can clearly see (I know I noticed it the moment I saw my x-rays, as it leaps out at you). However, since x-rays are not easily replicated, there is the possibility that my x-rays will become "misplaced". If this happens, I will be ready to file a lost document charge against the opposing counsel. But that's just me.

[dpmali]

the stress test was performed in this doctors office, and all he sent to all the other doctors involved was a summary sheet saying i was ok for surgery, and the ejection fraction measurement, which would be a result of the nuke test BUT I have been told that it is likely that if an expert eye spent proper time looking at the actual nuke test results they would be able to tell I have blockages, even though my EF% was normal.

he simply will not produce the actual images, and only has sent out a summary sheet that the doctor himself wrote, which looks like he has filled in standard boiler plate responses, and the EF% was HAND WRITTEN into the report towards the end, while the rest is typed

[Mr. Knowitall]

In other words, he's not claiming that they are lost or unavailable - he just won't give you copies?

Again, "we" means you and your lawyer?

[dpmali]

Yes We means me and my lawyer, he's not claiming anything, he just refuses to produce them.. back when i tried to get them myself in the first month, the secretary said to me "he usually responds right away but for some reason he just won't call me back about these records.. I'm so sorry" so I'm fairly sure he's cognizant of some wrongdoing

[Mr. Knowitall]

It appears, then, that your lawyer needs to decide if it's worth trying to pursue the case and compel disclosure of the records through the courts, as from what you've told us so far it does not appear that the doctor is going to voluntarily turn them over unless ordered to do so by a court.

Illinois law gives you the right to sue in state court for a copy of your medical record, so it is not necessary to file a malpractice case in order to compel disclosure. See 735 ILCS 5/8-2001 - 2003.