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  • $30.1 Million NYC - Medical Malpractice Case
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Missing Evidence in a Medical Malpractice Case

Suppose an important piece of evidence in your medical malpractice case has gone missing. Can this information be used at the time of trial? The answer is yes, and you can use that information of missing evidence at trial. Now, let say your case is about failure to timely diagnose and treat a fracture, and the key piece of evidence in your case are the x-rays that were taken in the orthopedics office. Once the lawsuit is initiated by you, these x-rays mysteriously disappear. So, now what happens next?

Establishing Certain Facts about Responsibility during Trial

At the time of trial, the plaintiff's attorney will try to establish several things. The lawyer will bring in someone working at the doctor's office, in order to establish that they are responsible for keeping those x-rays in the ordinary course of their business.

Once those x-rays are taken, they should be stored in a proper file cabinet. When doctor's office has the x-ray films, the lawyer will establish that they are supposed to have continuous control over those films. Since the doctor's office has failed to produce those x-ray films, the lawyer can bring in a missing document charge.

Missing Document Charge

At the end of the case, the lawyer will ask the judge to give the jury a legal instruction about the missing document charge. This charge is an instruction to the jury that they can infer the worst possible thing because the defense has failed to produce the key piece of missing medical evidence.

If the judge agrees to give this instruction, then during the closing remarks, the plaintiff's lawyer will have the opportunity to talk to the jury at length about this missing piece of evidence. The lawyer can tell the jury that there can be only one reason why these x-rays were never found. There can be only one reason why these x-rays have not been brought into court.

Not a Coincidence!

The reason is that if they were favorable to the defense, they would be here. However, the reality is that they are not, the x-rays are damaging to the defense's claim, and somehow they have mysteriously disappeared (sounds like the IRS situation). The judge will also tell the jury that they have every right to infer the reason for the x-rays not being there is that the defense did not want the jury to see them.

The missing document charge is a very powerful argument, and can turn the jury in favor of the plaintiff. Hence, if a key piece of medical evidence is missing in a medical malpractice case, the plaintiff's lawyer has every right to talk to the jury about it.

The lawyer can also request the judge to provide a legal instruction, where he allows the jury to know what the missing evidence means, and that the jury can infer the strongest possible thing against the defense, since they have lost the key piece of medical evidence. A missing document charge is given plenty of importance in a medical malpractice case because the doctor or hospital always has the power to destroy or misplace records, which are key pieces of evidence in the lawsuit.

Nothing should be missing!

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