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Medical Records in Litigation

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by Kevin P. DeMello, esq.

In the context of personal injury litigation, medical records play a critical role. Under Massachusetts General Laws Chapter 233 section 79G, medical records of a treating physician or hospital are admissible at trial. That means the jury considering your case gets to read them and consider everything that is in them as evidence. However, this can be a double-edged sword for Plaintiffs. It is certainly helpful that these records can be put into evidence to help the Plaintiff prove his or her case. Unfortunately, however, medical records often contain mistakes that can create major headaches for Plaintiffs.

For instance, in one recent case, a doctor mistakenly referred to an injury to a Plaintiff’s right hand when in fact the injury occurred to the Plaintiff’s left hand. Although the Plaintiff alleged that this was a simple oversight, the oversight allowed the Defendant to argue that the Plaintiff’s allegations were fraudulent. Another issue that often crops up in medical records is the tendency for doctors to include irrelevant information that casts the Plaintiff in a bad light. For instance, it is not uncommon for a medical record to contain references to a Plaintiff’s complaints about ongoing litigation.

A more troubling issue arises when references in medical records create contradictions for Plaintiff’s testimony. During litigation, if the Plaintiff’s deposition is taken, Defense counsel will sometimes ask about activities the Plaintiff is limited from doing due to his injury. A poorly prepared Plaintiff might be caught unaware and testify that he or she is unable to perform a certain activity, such as shoveling snow. Later, a medical record might turn up that claims that the Plaintiff tried to shovel his or her driveway and felt immense pain afterward. Although the Plaintiff may have forgotten about his or her attempt to shovel snow during the deposition, the Defense attorney can exploit the medical record to make it seem like the Plaintiff was lying.

These issues highlight the importance of hiring an attorney with a great deal of experience in personal injury law. An experience practitioner knows what issues to highlight in the medical records and can work with the Plaintiff to head off potential problems before they arise. Furthermore, a good attorney will counsel his client to be careful what he says to his doctor, because everything he says can end up in a medical record that could be used against him.