Discovery in a medical malpractice case, like almost every other civil case, begins with interrogatories and document production requests.  Generally, paper discovery is used to obtain background information and facts and not to find out why the defendant physician or nurse acted in a certain way.  Those questions are saved for deposition.  By and large, paper discovery in medical cases is relatively consistent from case to case.  I review below the information commonly sought in these requests. 

Interrogatories

1.                  Ask whether the defendant consulted with anyone other than counsel in answering the interrogatories, who that person is, and what was discussed.  Not often, but occasionally, a physician or nurse discusses the case and the interrogatories with a colleague.  I will then ask the defendant at his deposition what role this colleague played in the patient’s care (if not disclosed in the records) and what additional information or insight he/she may have.  I will then probably depose the colleague.

2.                  Obtain a full history of the defendant’s formal education since high school.  This background information can be obtained in this way more efficiently than at deposition.

3.                  For physicians, obtain a full history of their service as an intern, resident, and fellow. 

4.                  Ask the defendant to identify all medical publications to which he subscribes or that he regularly reads.  Frequently, these journals contain articles helpful to the case that can be used when examining the defendant in deposition or at trial. 

5.                  Ask the defendant to identify every professional licensure ever held and whether the licensure was ever revoked or suspended, or its renewal refused.  Prior professional discipline may reveal a pattern of patient neglect and help support a claim against a hospital for negligent credentialing.

6.                  Ask the defendant to identify every professional organization of which he has ever been a member.  One of these organizations may have issued model practice protocols or published articles in its journals that support the plaintiff’s theories and can be used in examining the defendant at deposition or trial.

7.                  Ask the defendant to identify any published article to which he has contributed as an author.  Ordinarily, I will already know this information from a pre-suit Medline search.  Nonetheless, the interrogatory should still be posed in case the online research was not complete.  The discovery of articles authored by the defendant can potentially lead to other articles with which to impeach the defendant.  I will look for articles supporting the plaintiff’s theories published in the same journal or authored by a coauthor of the defendant or the author of one of the publications footnoted in his article.

8.                  Ask the defendant to identify every other malpractice case in which he was named as a defendant.  I will obtain and read the defendant’s depositions from these cases before deposing him.

9.                  Ask the defendant to identify every case in which he served as an expert witness.  Again, I will obtain and review relevant depositions.

10.               Ask the defendant to identify every hospital, clinic, and other medical facility with which he has been affiliated and the reasons for termination of his prior affiliations.  This potentially could lead to information supporting a negligent credentialing claim against the hospital.

11.               Ask the defendant (physicians only) whether his privileges to practice at any hospital have been revoked, suspended, or curtailed, or their renewal refused.

12.               Ask the defendant to identify each available liability insurance policy and the limits of coverage. 

Document Production Requests

1.                  Request copies of any and all documents, including electronic documents such as e-mails, related to the patient’s care and not included in the medical chart.  This request ensures that any relevant documents not contained in the medical chart obtained pre-suit are provided.  Hospital documents not included in the official medical chart sometimes include internal communications, such as lab study requisitions.

2.                  Request copies of any investigation or incident reports, written or taped recollections, accounts or other descriptions concerning the incidents at issue.  Ordinarily, a hospital will refuse to produce responsive materials, claiming they are privileged quality assurance committee proceedings under RSA 151:13-a.  The merits of such a contention must then be examined.

3.                  In some hospital cases, request a copy of the on-call schedule and the nursing shift logs for any critical periods of time.  In many cases, it is important to know precisely when medical staff were assigned to the unit or available on-call.

4.                  Request credentialing agreements between a physician defendant and the hospital.  This will help me assess whether the physician acted within the scope of his hospital privileges.

5.                  If a claim is being made that a physician was acting as the agent of a hospital, request copies of all hospital advertisements for the relevant period.  Advertisements by the hospital promoting its physicians and the quality of care they provide may help establish that the defendant physician was an apparent agent of the hospital.

6.                  Request a copy of the professional agreement between the physician and his practice.  This is relevant to the merits of a vicarious liability claim against the practice and whether the physician was acting as an employee or as an individual contractor.

7.                  Request hospital and practice protocols and policies related to clinical issues in the case.  For example, in a recent birth injury case, we requested that the hospital produce “Any and all policies, guidelines, rules, practices, regulations, protocols, or similar materials relating to any of the following:

a.       Fetal heart monitoring;

b.       Fetal heart auscultation;

c.       Labor augmentation or induction;

d.       Emergent operative delivery;

e.       Instrumental assisted delivery (e.g., forceps or vacuum extraction);

f.         Rupture of membranes;

g.       Obtaining umbilical cord blood gas readings;

h.       Apgar scores;

i.         Perinatal asphyxia;

j.         Neonatal seizures;

k.       Premature or prolonged rupture of membranes;

l.         Maternal fever during labor;

m.     Fetal scalp monitoring; and

n.       APGAR scoring.

The documents received were of critical importance in the preparation and ultimately the resolution of the case.

Once responses to interrogatories and document production are received, discovery can enter the next and most important phase of depositions of the parties and key witnesses.  If done properly, the paper discovery should arm counsel with the information needed to maximize the productivity of this next critical phase.

Ralph F. Holmes is a partner with McLane, Graf, Raulerson & Middleton and handles complex personal injury, commercial, and probate litigation.

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