Sanitizing the Record – Admitted Medical Records

Similar to a bath of soap and bleach washing away grains of dirt from cloth, the blocking of admission of evidence cleanses the record free of unwanted particles of information detrimental to the court’s ultimate decision.

One way of cleansing the record in a big way is for the court to admit medical records without the losing side seeing them. Here is how this is set up.

Your adversary is the designated winner in your case. Your adversary serves upon you copies of medical information subpoenas to make it appear as if due process is taking place. You get these copies and mark them on a calendar expecting to see the fruits of the subpoena. You note that the recipient did not move to quash the subpoena and neither did your attorney. Months pass and you find out in court that these records (sensitive because they disclose private medical or psychological information)  are in the hands of the judge.

The judge pulls records out of an envelope and thumbs through them. You see this as your lawyer is standing bench side conferring with the judge and other attorneys on the case. The judge tells your lawyer that he will get copies of these records once personal information has been redacted (such as battered women’s shelter addresses). The case goes on and no redacted copies of any records ever appear in your hands.

Once the winner’s experts have all testified (without filing advance reports) and both sides have testified, the winner moves into evidence the medical records. Your lawyer stands up to object that he has never seen these records so he cannot make a cogent objection to their admissibility. The judge says the records are admitted subject to your lawyer’s objection.

This is a classic example of a sanitized record. You never once had an opportunity to challenge the medical records because no one on your side of the case ever saw them. You could not retain a private expert witness to review them and to offer testimony as to their content. These records may be a farce or they may contain exculpatory information favorable to your case. Hypothetically, if this is a child abuse case, wouldn’t it be useful to show that within the medical records, the child stated to a doctor that he lied about his dad hitting him because the child did not get the xbox he wanted. If this is a domestic violence case, wouldn’t it be useful to see if the wife lied about physical abuse (a doctor wrote that she said she threw herself against a wall to fabricate injury)?

So if the court wishes to fulfill social policy (for example the protection of children or the protection of spouses) the sanitization of the record (for perhaps future audit for receipt of federal funds) is a persistent trick used across this nation.