You are planning to submit a medical malpractice lawsuit for the injuries your baby has suffered due to improper obstetrical care during the time of your delivery. However, when you try to attain copies of your medical records, you are told by the hospital that they cannot locate the electronic fetal monitoring strips, for instance. Now if you go ahead with the lawsuit, what can happen to the hospital because they cannot locate your baby’s medical records?
This is very similar to what is going on now with Hillary Clinton since she deleted thousands of emails. The IRS has also been under fire as of late for not producing information that would reveal some terrible practices they implemented during the 2012 Presidential election.
The Hospital cannot Find Your Records
When you go ahead and file a lawsuit seeking compensation for the harms and injuries that your baby has suffered because of improper obstetrical care, one of the first things your lawyer will do is to get your labor and delivery records. Now, what will happen if the hospital cannot locate these records? Maybe the hospital misplaced the records, or they destroyed them intentionally. Whatever the reason is what happens if they cannot produce your records when you decide to file a medical malpractice lawsuit?
Penalizing the Hospital
One of the things that can happen is that the hospital can be fined or sanctioned. These penalties might be levied because the hospital has the obligation of keeping and maintaining your medical records. The hospital cannot discard or lose your medical records intentionally or inadvertently. Certainly for their own convenience.
All hospitals in New York are required by law to keep the medical records of everybody for a certain period of time. Now, when your lawyer requests your medical records from the hospital, and they cannot be found, one of things you can do is to ask the court to dismiss the hospital’s answer to your allegations.
Dismissing the Hospital’s Answer
When you file a medical malpractice lawsuit, you will be making certain allegations that the hospital violated basic standards of medical and obstetrical care. Now, when the hospital cannot locate your records and cannot provide a valid reason why they cannot locate them, there is the possibility the judge may not buy the argument of the hospital in terms of them not being able to find the records, and may order their answer to be stricken. This mainly means that you are receiving a win or a default.
It is like a sports team obtaining an automatic win when the opposing team does not show up. When the hospital’s answer is stricken, you get an automatic win on liability. This means you do not have to prove in court about the hospital being responsible for your baby’s injuries. However, you will still have to try the case for damages pertaining to how much compensation should be given to you and to your baby.
In the law, there is something called, spoliation of evidence. This means that the evidence you need for proving your case has been spoilt. For whatever reasons, your medical records are no longer available, which puts you at a disadvantage. Since you are at a disadvantage, the court recognizes this, and the court will try to penalize the entity that is responsible for keeping and maintaining those records and having them at the ready when they are requested.