Medical Malpractice And Missing Medical Records: Will I Be Able To Receive Compensation?

Medical Records

Medical malpractice claims require proof of several essential elements.  A plaintiff must prove that a duty of care was owed to him/her.  There must also be proof that the treating physician and/or medical facility deviated from accepted medical practice.  The deviation must be pleaded and proved to have been the proximate cause of the plaintiff’s injuries.  And lastly, the plaintiff must be able to articulate what his/her damages are.

Experienced medical malpractice attorneys know that expert witness testimony is required in order to successfully recover compensation through a medical malpractice lawsuit.  Additionally, the plaintiff’s medical records will be introduced into evidence to prove what the doctor’s did and to prove what the plaintiff’s injuries were.

Often times a plaintiff’s medical records are voluminous and are held by several different medical providers.  It is not uncommon for certain records to have been lost or destroyed.  Our attorneys know that lost records possibly critical to a plaintiff’s case will not necessarily result in a failure to recover damages.

In the legal arena, lost or damaged evidence is referred to as the spoliation of evidence.  A relatively recent New York Supreme Court, Appellate Division case, Johnson v. Ayyub, has directly confronted this issue.

In the Johnson case, a patient died of lung cancer and his spouse sued the hospital where the decedent was treated as well as the radiologist who read the decedent’s CT scans.  According to the radiologist, the scan revealed no abnormalities.  However, just two years after the scan, the decedent was diagnosed with lung cancer that had metastasized to the brain.  Therefore, the plaintiff alleged that the doctor failed to properly diagnose the decedent and that such a failure proximately led to the patient’s death.

The images from the CT scan were missing by the time of trial.  As such, the defendant moved to have the case dismissed, claiming that without the images, he could not mount a proper defense.  Additionally, he claimed that the plaintiff herself lost the records.  The trial court did not dismiss the case and instead directed the jury to give an adverse inference of evidence spoliation to either the plaintiff or the hospital; whomever the evidence tended to prove caused the records to be lost.

The appellate division affirmed the decision stating that dismissal for evidence spoliation is only warranted when the missing evidence would “fatally compromise” a proper defense or when the evidence was intentionally destroyed.  In the Johnson case there was no allegation that the plaintiff intentionally destroyed the evidence, and the evidence could be garnered form other documents.

In short, if evidence is missing, or if you have accidentally lost certain medical records, you may still be able to prevail in a medical malpractice action.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at