Plaintiff is not precluded from offering medical evidence if the loss of medical records, including missing MRI films, is not due to plaintiff’s fault.
To avoid preclusion, the Appellate Division recently said the plaintiff should provide an affidavit or affidavits “attesting to the fact that the MRI films or copies of the films were not in [plaintiff’s] possession or control or the possession and control of [plaintiff’s] counsel, treating physicians, experts, or anyone under their control.”
Eremina v. Scparta, 120 AD3d 616, 991 NYS2d 438 (2nd Dept. 2014).
See also, Cordero v. Mirecle Cab Corp, 51 AD3d 707, 858 NYS2d 717 (2nd Dept. 2008).
What does this mean? It means that plaintiff can produce MRI films/medical records on the eve of trial should these records magically appear.
But a more careful reading of the case Eremina v. Scparta, indicates that the decision is much more reaching. It actually indicates that plaintiff can do a lot more than just have more time to produce the MRI films. It seems to indicate that plaintiff can produce the radiologist that read the now lost MRI films, the MRI report, and other medical evidence relating to the missing MRI films. It seems that this democratically controlled Appellate Division takes the perspective that an injured person should be allowed to produce medical evidence to prove her injury and cannot be punished if the loss of records is not due to the plaintiff’s negligence or act of spoliation.
This expansive right for plaintiffs is new and may have not have gotten all the bugs worked out. Also, we have not heard from the Court of Appeals on this matter yet.
In simpler terms, if the plaintiff loses their medical records, including MRI films, they can still present medical evidence in court if they didn’t lose the records themselves. To do so, they must provide a written statement that they didn’t have the records or control them, and this statement will help them avoid punishment. In fact, the court ruling suggests that the plaintiff can present other medical evidence besides the missing MRI films, like the MRI report or the radiologist who read the films. This is a new right for plaintiffs and it’s not yet clear if it will have any issues or if the highest court will agree with it.
