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Can Your Lawyer Remove Certain Information from Your Medical Records

May 24, 2015 | Medical Malpractice

Your lawyer offers your medical records into evidence, but before the jury sees them, your lawyer wants to redact certain information from your records. Will the judge allow this?

Entering Medical Records into Evidence

In a medical malpractice case or an accident case, the lawyer will need to enter his client’s medical records into evidence. However, before the jury is able to see those records, the lawyer might want certain things removed from those records. The lawyer cannot simply remove such information before admitting the records into evidence because the defense might have a dispute about what is contained in those same documents.

Certain Information can actually be Removed from the Records

For instance, in a car accident case, there is certain information in the medical records to indicate that the victim might have been drinking on the night of the incident, or somebody in the ER smelled the odor of alcohol on the victim’s breath. Now, the lawyer would want to remove such information from the records, so that the jury does not see or consider that. Many people would be horrified to think that this is even possible.

This evidence is a game changer. The very fact the defense wants this information removed shows the case how vital that information is.

However, according to specific case law, if particular information is not relevant to the treatment and diagnosis, then the jury is not permitted to see that information and the witnesses are not permitted to discuss that information. Hence, even though there is odor of alcohol or the nurse recognizes the blood shot eyes of the patient, such information may not be relevant for the purposes of diagnosis and treatment. Incredible!

An Explanation

Suppose somebody went through a stop sign and caused you injury. The fact that he had blood shot eyes has nothing to do with causing the incident or with your damages. The same thing is applicable for the odor of alcohol. The other driver might have had a drink, two or three hours earlier, and the odor of alcohol could have lingered on his breath. Therefore, such fact alone is insignificant in evaluating who is legally responsible for the accident.

Best Practice

For the purposes of evaluating who is legally responsible, if the lawyer needs to remove certain portions of the medical records, the best practice would be to address this issue with the judge before the start of that day or before the start of the trial. In such instances, the judge can hear legal arguments from both sides and then make a ruling. If the judge rules removing certain information, then the judge will most likely tell the jury that this record is admitted into evidence, subject to redaction. This would mean that before the jury actually sees the record, the lawyer would have removed certain portions or pages that have the offending or particular information.

Therefore, the law allows removing certain information from the medical records that holds no relevance to the diagnosis or the treatment. When such information is removed from the records, the judge will mention to the jury that the records were admitted into evidence subject to redaction.