Medical malpractice appeal turns on jury instruction

The Rhode Island Supreme Court affirmed a medical malpractice jury verdict in favor of a patient who had to undergo a kidney transplant.  The key issue on appeal is whether the trial court properly gave a jury instruction which in effect advised the jury that it could infer that evidence contained in a set of reports would have been unfavorable to the defendant doctor.  The Rhode Island Supreme ruled that the instruction was properly given based on the loss of a series of diagnostic reports.

In Illinois, there is a pattern jury instruction which addresses the same issue, which referred to by trial lawyers as the missing evidence or missing witness instruction.  In essence it advises the jury that they can infer that a item of evidence or a witness would have been unfavorable to a party in control of the evidence or witness if they believe that a party would have been produced the evidence in court had it been favorable to them.  That is a very long way of saying, "If it would have helped you, you would have brought it.  Since you didn't ...."  It is a powerful instruction to get because it gives teh lawyers a lot of latitude to argue just how bad the missing evidence would have been.

During my years of practice, I have seen the missing evidence or missing witness instruction used in a number of settings in personal injury lawsuits:

• In trucking accidents, based on the failure to prodice log books, supporting documentation, and shipping records;
• In slip and fall accidents, based on the failure to produce incident reports and security videos;
• In construction accidents, based on the failure to produce inspection records and actual items involved in accidents, such as a section of scaffolding;
• In nursing home abuse and neglect cases, based on the failure to produce patient records; and
• In medical malpractice cases, based on the failure to produce pathology samples, patient records, and policies and procedures.

One of the key factors that you need to convince a judge to give a missing evidence instruction is soem indication that the defendant knew that litigation was likely to result from an accident.  As experienced Chicago personal injury lawyers, one thing that we do early on in appropriate cases is issue "preservation letters" advising the defendant that there may be litigation and that they should preserve crucial documents and other items of evidence.  The preservation letters make it easier for judges to find that key evidence should have been preserved and to give a missing evidence instruction where warranted.  This is another reason that you should promptly consult counsel after a serious accident or wrongful death.