Evidence in malpractice cases can disappear. Medical records get lost during system transitions. Electronic data gets overwritten. Imaging studies get purged after retention periods expire. Witnesses forget details. Equipment gets discarded or replaced. Understanding what evidence is at risk and how to preserve it before filing suit can determine whether your case succeeds or fails.
Acting quickly to identify and preserve evidence is among the most important steps you can take when you believe malpractice occurred. Some evidence that exists today won’t exist in six months or a year.
Types of Evidence at Risk
Medical records face various destruction risks. While healthcare providers must retain records for legally required periods, those periods vary by state and record type, and some records may be lost before retention periods expire through system failures, transitions between electronic record systems, or simple negligence in record-keeping.
Diagnostic images—X-rays, CT scans, MRIs, ultrasounds—may have shorter retention requirements than written records in some jurisdictions. Images consume substantial storage space, and healthcare facilities sometimes purge older images after meeting minimum retention requirements. The original images, not just the written reports, may be essential for your case.
Electronic health records contain metadata and audit trails showing who accessed records, when entries were made, and whether records were modified. This information can reveal backdating, after-the-fact additions, or alterations to records. Electronic systems may overwrite or purge this metadata over time.
Medical devices and equipment involved in your care might contain data or might be examined for defects. Equipment gets replaced, updated, or discarded. Once gone, it cannot be inspected.
Physical evidence like surgical specimens, tissue samples, or cultures may be retained for limited periods. After retention periods expire, these materials are typically destroyed.
Witness memories fade quickly. Healthcare providers see many patients and may not remember specifics of your care without records to refresh their recollection. The sooner witnesses are interviewed or deposed, the more they’re likely to remember.
Communication records—emails, text messages, internal communications about your care—may not be part of the formal medical record but may contain relevant information. These communications are often retained for limited periods.
Preservation Letters
A preservation letter, also called a litigation hold letter, formally notifies potential defendants that you may bring a claim and demands that they preserve relevant evidence. This letter creates a legal duty to preserve evidence that might not otherwise exist.
Preservation letters should identify you, identify the care at issue (dates, providers, facilities), state that you are considering legal action, demand preservation of all records, images, communications, and other evidence related to your care, and list specific categories of evidence that must be preserved.
The letter should be sent to appropriate recipients—typically risk management, medical records, and legal departments at healthcare facilities, and directly to individual providers or their practices.
Sending a preservation letter triggers the recipient’s duty to implement a litigation hold—suspending normal document destruction and ensuring relevant evidence is preserved. Failure to preserve evidence after receiving a preservation letter can result in sanctions, adverse inference instructions, or other consequences if evidence is later destroyed.
Timing matters. Sending a preservation letter promptly after you suspect malpractice maximizes the evidence that will be preserved. Waiting until you’ve decided to sue may mean evidence has already been destroyed under normal retention policies.
An attorney can prepare and send preservation letters as part of initial case investigation. If you’re not yet working with an attorney, you can send a preservation letter yourself, though attorney-prepared letters may be taken more seriously.
Obtaining Records Promptly
Beyond preservation letters, actually obtaining copies of records protects against later loss or alteration.
Request complete records from all providers involved in your care. Don’t rely on summaries or excerpts—request the entire record.
Request records in native electronic format when possible. PDF exports of electronic records may not include all metadata or system-generated information that native format records contain.
Request diagnostic images on disc or through electronic access, not just the interpretive reports. Having the actual images allows your experts to review them independently.
Request billing records and itemized statements. These sometimes reveal services or events not clearly documented in clinical notes.
Make multiple copies and store them securely. If your copies are lost, you want backups.
Compare records obtained at different times. If records change between requests, the changes may be significant. Records should not be altered after the fact, and evidence of alterations can support your case.
Preserving Your Own Evidence
You possess evidence that may be relevant to your claim.
Photographs of your condition—wounds, bruising, physical changes—document your injuries visually. Take photographs with date stamps at regular intervals to show progression.
Records of your symptoms, limitations, and recovery provide contemporaneous documentation. Keep a diary or log of how you’re feeling, what you can and cannot do, and how your condition changes over time.
Communications with healthcare providers, including patient portal messages, emails, and notes from phone calls, may be relevant. Preserve these communications.
Financial records document economic losses. Keep records of medical bills, lost wages, and other expenses resulting from your injury.
Witness information—names and contact information for people who observed your condition or care—allows future contact with potential witnesses.
Spoliation: When Evidence Is Destroyed
Spoliation is the destruction of evidence that a party had a duty to preserve. When spoliation occurs, various remedies may be available depending on the circumstances and jurisdiction.
Adverse inference instructions tell the jury that they may infer the destroyed evidence would have been unfavorable to the party who destroyed it. This can be a powerful remedy, essentially allowing the jury to assume the worst about what the evidence would have shown.
Sanctions can include monetary penalties, evidentiary preclusions, or in extreme cases, dismissal of claims or entry of judgment.
Separate tort claims for spoliation exist in some jurisdictions, allowing recovery against parties who destroy evidence.
The availability and standards for these remedies vary significantly by state. Some jurisdictions require proof that evidence was destroyed intentionally or in bad faith. Others apply remedies for negligent destruction after a preservation duty arose.
Proving spoliation requires proving that relevant evidence existed, that the party had a duty to preserve it, that the evidence was destroyed, and that the destruction prejudiced your case. Preservation letters help establish the duty to preserve.
Working With Attorneys on Evidence Preservation
Attorneys experienced in malpractice understand what evidence matters and how to preserve it. Early consultation—even before you’ve decided to file suit—allows attorneys to:
Identify what evidence exists and what’s at risk. Experienced attorneys know what evidence typically matters in cases like yours and where to look for it.
Send appropriate preservation letters to all relevant parties. Attorneys know how to frame these letters effectively and who should receive them.
Obtain records through proper channels. Attorneys can navigate obstacles to record access and ensure complete records are obtained.
Engage experts to review and preserve evidence. For complex evidence like imaging studies or electronic records, experts can ensure proper handling and preservation.
Document the chain of custody for evidence. Proper handling of evidence preserves its admissibility at trial.
Timing Considerations
Evidence preservation should begin as soon as you suspect malpractice, ideally before deciding whether to file suit. The reasons are practical:
Some evidence has short retention periods. Waiting until you’ve fully evaluated your case may mean evidence is gone.
Preservation letters work best when sent early. The duty to preserve typically arises when litigation is reasonably anticipated. Early letters make that anticipation clear.
Record alterations may occur early. If records are going to be altered—which is improper but does happen—it often occurs shortly after adverse events when providers realize problems may exist.
Consulting an attorney early—for evidence preservation purposes—doesn’t commit you to filing suit. Many attorneys will provide initial consultation and send preservation letters as part of case evaluation, even if you ultimately decide not to pursue a claim.
Important Disclaimer
This article provides general educational information about evidence preservation in medical malpractice cases. It is not legal advice and should not be relied upon as such.
This information may be inaccurate, incomplete, or outdated. Rules regarding preservation duties, spoliation remedies, and record retention vary significantly by state. Procedures for obtaining records and implementing litigation holds differ by jurisdiction and institution.
Do not make legal decisions based on this article. Evidence preservation strategies should be tailored to your specific situation by qualified professionals who understand what evidence matters and how to protect it.
Consult a qualified medical malpractice attorney licensed in your state promptly if you believe malpractice occurred. Evidence preservation is time-sensitive. Delay increases the risk that important evidence will be lost.
Act quickly to obtain your medical records regardless of whether you’ve consulted an attorney. Your right to your records exists independently of any legal claim. Having copies of your records protects against loss and allows meaningful evaluation of your potential case.