This paper discusses discovery and deposition strategies for medical malpractice cases. It also addresses current procedural rules affecting the taking and use of depositions in medical malpractice cases.
Section II of this paper is devoted to discovery related issues and primarily focuses on the written forms of discovery. Depositions are discussed in Section III of this paper.
- Discovery Tips
Early discovery is essential to the plaintiff in a medical malpractice case. The plaintiff’s first priority is to obtain the relevant medical records. Those records are essential to understanding the issues in the case and the required 120 day expert report.
After you identify the issues in your case, craft discovery to address those issues. For example, if you have a retained sponge case you may ask the defendant:
Please identify who you believe caused a sponge to be retained in Plaintiff. Please also state the facts that support your belief.
Discovery will do you no good if it does not address the issues in your case.
- Requests for Production
Be sure to ask for the following documents and physical evidence in every case:
- Policies and procedures
- Medical licenses, certifications, and accreditations
- Investigative reports or incident reports;
- Medical records, x-rays, tissue samples, blood samples, and other diagnostic studies
- Pleadings from other lawsuits the person/entity has been a party to
- Licenses applications and applications to professional associations
- Curriculum Vitae
- Medical school transcript
- Documents related to board certification
- Personnel file(s)
A sample set of requests for production to a doctor is included as “Exhibit A” to this paper.
Be sure to send interrogatories specific to your case. Questions about the following subjects apply to most cases:
- Persons involved in the subject treatment or procedure
- Identity of all physicians associations, and other business entities
- Hospitals privileges
- Complaint/grievance history
- Medical treatises, articles, publications authored
- History of drug/alcohol treatment
- Identity of insurer/policy information
- Date first notified insurer of potential claim
- Previous lawsuits
- Discussions with the patient/patient’s family
A sample set of interrogatories to a doctor is included as “Exhibit B” to this paper.
- Physical and Mental Examinations
Texas Rule of Civil Procedure 204 allows a party to compel another party to submit to a physical or mental examination by a qualified professional. A court may only order such an examination for good cause shown and only in situations where the mental or physical condition of a person is in controversy. Tex. R. Civ. P. 204.1 (b).
Mental examinations may not be compelled simply because the plaintiff makes a claim for mental anguish damages. In re Doe, 22 S.W.3d 601, 606 (Tex. App.—Austin 2000, orig. proceeding) (“A court may compel a plaintiff to submit to a mental examination only if the plaintiff asserts a mental injury that exceeds the common emotional reaction to an injury or loss.”) (emphasis in original). Good cause requires the requesting party show: (1) examination is relevant to the issues genuinely in controversy and will or likely to produce relevant evidence; (2) reasonable nexus between the condition in controversy and examination requested; and (3) the information could not be obtained through a less intrusive means. Id.
The party requesting the examination must also follow specific procedural steps. First, the motion must be made no later than 30 days before the close of discovery. Tex. R. Civ. P. 204.1(a). Second, the order must be “in writing and must specify the time, place, manner, conditions, and scope of the examination and the person or persons by who it is to be made.” Tex. R. Civ. P. 204.1(d).
The plaintiff is not the only party subject to the possible production of physical or mental health information. A plaintiff may move to compel an examination of the defendant’s mental or physical state if the plaintiff meets Rule 204.1’s requirements.
In R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994), the plaintiffs in a medical malpractice action moved to discover the medical and mental health records of the defendant doctor. After in camera inspection, the trial court ordered the defendant doctor to sign a release for the plaintiffs to obtain medical records. The Corpus Christi Court of Appeals reviewed the order on mandamus and reversed the trial court’s order because the plaintiffs’ pleadings did not support finding the doctor’s condition in controversy. The plaintiffs amended the pleadings, alleging the doctor’s medical and emotional problems affected the care he gave his patient and that the hospital’s selection of an unfit and incompetent doctor proximately caused the plaintiffs’ injuries. On mandamus, the Supreme Court of Texas held the plaintiffs were entitled to discover some of the defendant doctor’s medical and mental health records.
- Written Discovery Before the Expert Report
Chapter 74 places a stay on discovery in medical malpractice cases until the plaintiff serves an expert report and curriculum vitae as required by § 74.351(a). Tex. Civ. Prac. & Rem. Code § 74.351(s). Three subsets of discovery are excepted from the stay: (1) written discovery under Rule 192.7; (2) depositions on written questions under Rule 200; and (3) discovery from non-parties under Rule 205. Tex. Civ. Prac. & Rem. Code § 74.351(s).
- Substantive Discovery Issues
You’ve filed your expert report and you generally have a theory of your case, what other things should you consider when sending out written discovery? Consider some of the topic areas discussed below. Also, don’t be afraid to ask your expert for insight on what documents and physical evidence might have been produced as a result of the incident.
- Missing Physical Evidence
Do not forget to request physical evidence like tissue samples as soon as possible.
In Murphy v. Mendoza, 234 S.W.3d 23 (Tex. App.—El Paso 2007, no pet.), the Mendozas filed suit against two pathologists and a hospital claiming the pathologists were negligent in reading Mr. Mendoza’s bladder biopsy. The Mendozas claimed the pathologists incorrectly concluded cancer was present in both his bladder and his prostate which were both removed as a result of their conclusion. The Mendozas’ attorney requested the original slides from the biopsy for their expert to review. However, the hospital informed them the originals had disappeared. As a result, the Mendozas’ expert was forced to use recuts of the tissue to render his 120 day expert report.
The defendants, of course, objected saying the expert’s reliance on recuts made his report speculative. The trial court disagreed, but the appellate court found a way to justify dismissing the plaintiffs’ claims since because their expert did not rely on the original slides which were lost or destroyed by the defendants.
- Documents to Show Expert Bias
Texas Rule of Civil Procedure 192.3(e)(5) allows discovery of evidence of expert witness bias. And while an expert witness may be questioned about payment for his services, the discovery of personal financial records sought solely for the purpose of impeachment may be denied. Russell v. Young, 452 S.W.2d 434, 436 (Tex.1970).
Interestingly, a witness who admits bias or prejudice may be more protected from discovery than one who does not. See Olinger v. Curry, 926 S.W.2d 832 (Tex. App.—Fort Worth 1996, orig. proceeding) (discovery of expert witness’s tax returns not permitted when the witness admitted testifying for defendants 90% of the time). The Olinger court justified its decision, saying:
Subjecting an expert medical witness in a civil case to produce income tax returns merely to show that he is a “defense” doctor, particularly when he has admitted 90% of his work is for defendants, would permit experts on either side of the case to be subjected to harassment and might well discourage reputable experts from accepting employment in other cases.
Id. at 835; see also, In re Weir, 166 S.W.3d 861 (Tex. App.—Beaumont 2005, orig. proceeding).
Relying on Olinger and Weir, the plaintiffs in In re Markis sought discovery of an expert’s personal financial documents, expert reports, and correspondence from other unrelated cases after the expert denied having any bias in favor of defendants and admitted deriving significant income from litigation. 217 S.W.3d 521 (Tex. App.—San Antonio 2006, orig. proceeding). The Markis court refused to allow the discovery, saying:
The basic premise of such reasoning is flawed– the simple denial of bias cannot logically equate to evidence of bias. If that were true, essentially all experts, except those who frankly concede a bias, would be subjected to discovery . . . .
Id. at 525.
So, the Texas Rules allow for a party to discover evidence of bias from an expert witness. However, so far, experts who admit bias have not been subject to discovery and experts who deny bias have not either.
- Peer Review Privilege
The Texas Occupations Code provisions related to medical care providers confer a privilege on medical peer review committee records and proceedings. Tex. Occ. Code § 160.007 (“Except as otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential.