Anatomy of the discovery process
By Christopher Todd, JD, Assistant Vice President, Seak Legal and Medical Information Systems, Falmouth, MA
The standard for discovery is broad. Generally speaking, parties are allowed to discover information and documents that are "likely to lead to the discovery of admissible evidence," regardless of whether they will be ultimately admissible at trial.1 That is, information may be obtained during discovery that is not itself admissible as evidence. This broad standard is based on two rationales: the elimination of surprise at trial and the encouragement of settlement. The idea is that if the parties know all there is to know about the other side’s case, the parties will be able to rationally evaluate the strength of the case and come to a settlement. Moreover, if the suit does go to trial, the outcome will turn on the "facts" rather than gamesmanship, as the discovery process has minimized the possibility of unfair surprises.
The defendant’s investment of time and effort begins in earnest at this stage. The defendant’s attorney will meet with the defendant to review the events surrounding the case, the chart, and any other pertinent medical records. During discovery, the defendant likely will be required to devote some time providing answers to written discovery and gathering any relevant documents that are requested, and he or she certainly will need to devote a significant amount of time to prepare for deposition. Editor’s note: For more information on preparing for a deposition, see ED Legal Letter, March 2001.
The methods parties use to discover information are fairly standard and are employed in a sequence that varies little from jurisdiction to jurisdiction.
Interrogatories are written questions served by one party on another party. Defense counsel will contact the defendant once the plaintiff has submitted what will often be a significant number of standard interrogatories. They will include questions regarding the defendant’s education, training, experience, insurance, defenses to the claims, and treatment of the patient. The defendant also likely will receive questions about witnesses and exhibits. Defense counsel will forward the interrogatories to the defendant and ask him or her to supply answers in draft form. The defendant and his or her attorney will meet to go over the questions and, before giving the answers to plaintiff’s counsel, the defendant’s attorney will finalize the form of the answers.
• Requests for disclosure.
Requests for disclosure are statutorily predetermined requests for information that must be produced without objection. Disclosures cover the basic information involved in a lawsuit, including potential witnesses, experts, contentions of the parties, damages, and the identity of health care providers who rendered medical care to the plaintiff. The parties also will be required to exchange the reports written by their experts containing the experts’ opinions and bases for those opinions.
• Requests for admission.
Requests for admission require the party served to either "admit" or "deny" certain facts and contentions. These requests are particularly time-sensitive, and failure to respond in a timely manner may result in matters being deemed admitted. That is, the court will consider the failure to respond in a timely fashion, as a matter of law, an admission of the particular fact.
• Requests for production.
Requests for production are requests for written documentation or other tangible items that the requesting party would like to inspect or copy. Such requests may be served with interrogatories and might include requests for all pertinent records, diagnostic studies, pathology samples, correspondence, billing statements, exhibits, photographs, policies and procedures, materials given to experts, and the experts’ curriculum vitae. Defense counsel likely will ask the defendant practitioner to help obtain many of the requested items.
Depositions are question and answer sessions in which witnesses provide sworn testimony. They usually take place after the completion of all written discovery. The parties are generally deposed first, then fact witnesses, and finally the experts. This is because the experts often rely on information that is developed in the earlier depositions.2
— Plaintiff’s deposition.
The deposition of the plaintiff is necessary, but infrequently of overwhelming benefit, since plaintiffs them selves often have minimal recall or understanding of the truly important medical issues. The plaintiff’s deposition is important, however, because it allows defense counsel to tie down the plaintiff’s version of the facts that the plaintiff subsequently will have to stick to.
— Defendant’s deposition.
The defendant deposition is, in many respects, the most important part of preparing the case for the defense. The most important testimony in malpractice actions usually comes from the defendant, rather than the experts — in particular when the defendant can convincingly explain what happened. And, while facts certainly are important to jurors, firmly establishing the defendant’s credibility and trustworthiness has great impact. The defendant’s deposition is critical for another reason: Plaintiff’s counsel will conclude, on the basis of the defendant’s performance at deposition, whether the defendant will make a strong witness at trial. As a result, the plaintiff’s attorney may decide to drop the case altogether. For these reasons, substantial predeposition preparation of the defendant can make a critical difference in a malpractice case. Defense counsel should and will prepare the defendant meticulously and thoroughly. The defendant should be prepared for the time and effort involved in deposition preparation. The defendant should expect that as part of deposition preparation, defense counsel will: explain the procedural aspects of the case in understandable terms; go through each allegation made by the plaintiff, including its meaning and its probable merits; discuss the strengths and weaknesses of the case; discuss key questions that the plaintiff’s lawyer likely will ask; explain the deposition procedure; explain how the deposition transcript can be used at trial; explain how to respond to questions; go through all pertinent medical records, studies, and legal documents; and explain how to respond to an attorney’s objections.3
Moreover, as part of the preparation, the defendant must review interrogatory answers and the contents of documents that were produced during previous discovery in addition to medical documents. Inconsistent answers at the deposition will harm the defendant’s credibility. The defendant also should discuss the vulnerabilities and weaknesses of the case with defense counsel. It is vital that the defendant work with defense counsel to anticipate the questions the plaintiff’s lawyer will pose.
• Independent medical evaluations.
Another tool allowed under discovery rules is the physical examination of a plaintiff, which may be allowed when the mental or physical condition of a party is in controversy. In malpractice cases, such examinations usually are requested by the defense and are called independent medical evaluations (IME). The defense attorney will hire a practitioner to perform the IME. The plaintiff will be ordered by the court to appear for the IME. Following the examination, the professional performing the IME will submit a report of the findings and conclusions of the examination. This report often will rebut the plaintiff’s injury claim. Also, the examining physician or nurse will testify as an expert witness in many cases. It is of note that the IME generally does not create a physician-patient relationship or a nurse-patient relationship.
Limits of Discovery — Privileges
The plaintiff may seek to discover information that the defendant considers confidential. Although the scope of discovery is broad, the discovery rules prevent the disclosure of privileged matters. Privilege examples are the physician-patient, attorney-client, and attorney work-product privileges. Of these, the attorney-client privilege arises most often in malpractice cases. This privilege shields from discovery all communications between the client and the attorney, and may extend to agents of the attorney. Privileges often are raised during discovery. The plaintiff’s attorney will use one of the discovery methods to request a piece of information, and defense counsel may file a motion to protect this piece of information from discovery based on a claim of privilege. Less often, the plaintiff will claim the privilege. The judge will rule as to whether the privilege applies.
The discovery rules also allow the judge to consider the burden imposed on a party if the discovery were to be allowed. The convenience, expense, possibility of other avenues of discovery, and the benefit of the discovery may form the basis of a judge’s decision to prevent discovery.
1. Berry DB. The physician’s guide to medical malpractice. Baylor University Medical Center Proceedings 2001; 14:110.
2. Fed. Rule of Civ. Pro. 26(b)1.
3. For a detailed discussion of the deposition of an expert witness, please see Babitsky S, Mangraviti Jr. J. How to Excel During Depositions: Techniques for Experts that Work. Falmouth, MA: Seak; 1999.