Questioned Medical Documents: Spoliation
“omnia praesumuntur contra spoliatorem”
“All things are presumed against a wrongdoer.” Pomeroy v. Benton, 77 Mo. 64 (1882).
When you wonder if medical documentation is authentic, call me. I wrote my master’s thesis on spoliation of evidence in medical negligence litigation: BEFORE AND AFTER: SPOLIATION OF MEDICAL EVIDENCE IN MEDICAL NEGLIGENCE LITIGATION (Loyola University, School of Law LLM Health Law 1996)
If a party fails to produce evidence which is under his control and reasonably available to him and not reasonably available to the adverse party, then you may infer that the evidence is unfavorable to the party who could have produced it and did not. (Cherovsky v. St. Lukes’s Hospital, No. 245197, 1995 WL 739608, 4 (Ohio App. 8 Dist. Dec. 14, 1995). (unpublished opinion). (Jury instruction)
Often, when a health care provider feels that there is trouble, he will destroy or alter the medical record. This conduct is subject to analysis and the legal consequences may favor dramatically the Plaintiff in a medical negligence action. A case may be dismissed with a directed verdict for the Plaintiff. In criminal litigation, the case may be dismissed and the court may impose sanctions.
If you encounter an absent medical record or a tampered medical record, please call me. Often, I am able to solve the puzzle.
GET DR. OPPENHEIM’S “THE MEDICAL RECORD AS EVIDENCE” TODAY!