Legal Question in Medical Malpractice in Wisconsin

Re: missing medical documents

I had to look this up in the statute book because this hardly ever happens. Sometimes the health care provider says it cannot find records but, in my experience, they almost always are able to find them eventually. In any event, it is a crime to "intentionally destroy or damage records in order to prevent or obstruct an investigation or prosecution." Wis. Stat. sec. 146.83(4)(c). Thus, it is pretty hard to prove intent in a criminal case if the health care provider simply states that the records cannot be found. The medical records are usually needed to prove a malpractice case, so losing the records can, in many cases, make it impossible for the plaintiff to prevail. There is a legal theory that a presumption may be raised that missing medical records contained information adverse to the party losing the records. That legal theory is called spoliation of evidence. Under that legal doctrine, you might be able to prevail if the clinic is a defendant in your case. I think that it is still difficult to win a medical malpractice case without the important records. Even with the records, most medical malpractice cases are difficult to win. The best way to find out what happened, if you have a case filed, is to take a deposition of the record custodian to determine how the records could possibly have been lost. As I say, the records usually show up eventually.