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Unable to obtain relevant records from hospital and private doctor, impossible to get an evaluation for a medmal lawsuit.

Brooklyn, NY |

I was under treatment in a hospital, I was hooked up to a cardiac monitor for EKG, and a brain wave monitor. After discharge I discovered on EKG a probable heart attack, time undetermined and also Atrial Ventricular Blocks. In the hospital record I requested, all EKG records during the treatment was removed. I asked for those records. They told me they were not recorded, and there was no problem. The private doctor that referred to the treatment refused to give me the records that he has and asked why I want the records. When I sent him a formal request, he sent me back a letter saying that the records were destroyed in a storm. Shows you the difficult of patients seeking justice. Complaints about the hospital to the state. State unable to help. What can I do about the doctor?

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Attorney answers 7


Consult with a medical malpractice lawyer. If you run up against a statute of limitations problem you can start the lawsuit yourself without a lawyer because the rule about certifying the case does not apply to pro se litigants. However, you would still need an expert to defeat summary judgment and at trial.

I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.


Consult with an experienced medical malpractice attorney. They will do whats necessary to get the records.


Any medical malpractice attorney will be able to cut through the road blocks. Consult with one.

This answer is not intended as legal advice, nor as a substitute for legal advice received from an attorney during a consultation. Your rights and obligations may vary depending upon facts not disclosed in your question. Therefore, you should contact an attorney immediately so that your interests are properly protected.


Have a local malpractice lawyer investigate the records that remain. If any were destroyed, there would be spoliation which would work to your benefit.



I really do not think that the storm destroyed any of his records. His office is in a very secure building on a higher floor. He delayed me already for several weeks by asking me to come to his office for a consultation, and he would give me what I need. I cancelled his appointment and sent him the HIPAA form. I think that it is a calculated move on his part to buy time. How long does it take for a local lawyer to investigate the case? I already know that the state HIPAA organization has no bite.


You are best off consulting with a lawyer to get the records that you are looking for. You may consider consulting with the NYS department of Health to assist you in your quest if you can find an attorney that is willing to help.


As far as the doctor is concerned, I would file a complaint withe The New York State Office Of Professional Medical Conduct. You will be surprised that just by informing this doctor that you have been advised to do so how quickly you mar receive your records. I also would persist by filing a similar complaint with the State agency regarding the hospital's response as well. Under NYS Public Health Law you are entitled to your medical records.


You should file complaint with the New York State Department of Health

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