This paper discusses discovery and deposition strategies for medical malpractice cases.\u00a0 It also addresses current procedural rules affecting the taking and use of depositions in medical malpractice cases.<\/p>\n
Section II of this paper is devoted to discovery related issues and primarily focuses on the written forms of discovery.\u00a0 Depositions are discussed in Section III of this paper.<\/p>\n
Early discovery is essential to the plaintiff in a medical malpractice case.\u00a0 The plaintiff\u2019s first priority is to obtain the relevant medical records.\u00a0 Those records are essential to understanding the issues in the case and the required 120 day expert report.<\/p>\n
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:<\/p>\n
Please identify who you believe caused a sponge to be retained in Plaintiff.\u00a0 Please also state the facts that support your belief.<\/p>\n
Discovery will do you no good if it does not address the issues in your case.<\/p>\n
Be sure to ask for the following documents and physical evidence in every case:<\/p>\n
A sample set of requests for production to a doctor is included as \u00abExhibit A\u00bb to this paper.<\/p>\n
Be sure to send interrogatories specific to your case.\u00a0 Questions about the following subjects apply to most cases:<\/p>\n
A sample set of interrogatories to a doctor is included as \u00abExhibit B\u00bb to this paper.<\/p>\n
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.\u00a0 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.\u00a0 Tex. R. Civ. P. 204.1 (b).<\/p>\n
Mental examinations may not be compelled simply because the plaintiff makes a claim for mental anguish damages.\u00a0 In re Doe, 22 S.W.3d 601, 606 (Tex. App.\u2014Austin 2000, orig. proceeding) (\u00abA 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.\u00bb) (emphasis in original).\u00a0 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.\u00a0 Id.<\/p>\n
The party requesting the examination must also follow specific procedural steps.\u00a0 First, the motion must be made no later than 30 days before the close of discovery.\u00a0 Tex. R. Civ. P. 204.1(a).\u00a0 Second, the order must be \u00abin 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.\u00bb\u00a0 Tex. R. Civ. P. 204.1(d).<\/p>\n
The plaintiff is not the only party subject to the possible production of physical or mental health information.\u00a0 A plaintiff may move to compel an examination of the defendant’s mental or physical\u00a0 state if the plaintiff meets Rule 204.1’s requirements.<\/p>\n
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.\u00a0 After in camera inspection, the trial court ordered the defendant doctor to sign a release for the plaintiffs to obtain medical records.\u00a0 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.\u00a0 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.\u00a0 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.<\/p>\n
Chapter 74 places a stay on discovery in medical malpractice cases until the plaintiff serves an expert report and curriculum vitae as required by \u00a7 74.351(a).\u00a0 Tex. Civ. Prac. & Rem. Code \u00a7 74.351(s).\u00a0 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.\u00a0 Tex. Civ. Prac. & Rem. Code \u00a7 74.351(s).<\/p>\n
You\u2019ve filed your expert report and you generally have a theory of your case, what other things should you consider when sending out written discovery? \u00a0Consider some of the topic areas discussed below.\u00a0 Also, don\u2019t be afraid to ask your expert for insight on what documents and physical evidence might have been produced as a result of the incident.<\/p>\n
Do not forget to request physical evidence like tissue samples as soon as possible.<\/p>\n
In Murphy v. Mendoza, 234 S.W.3d 23 (Tex. App.\u2014El Paso 2007, no pet.), the Mendozas filed suit against two pathologists and a hospital claiming the pathologists were negligent in reading Mr. Mendoza\u2019s bladder biopsy.\u00a0 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.\u00a0 The Mendozas\u2019 attorney requested the original slides from the biopsy for their expert to review.\u00a0 However, the hospital informed them the originals had disappeared.\u00a0 As a result, the Mendozas\u2019 expert was forced to use recuts of the tissue to render his 120 day expert report.<\/p>\n
The defendants, of course, objected saying the expert\u2019s reliance on recuts made his report speculative.\u00a0 The trial court disagreed, but the appellate court found a way to justify dismissing the plaintiffs\u2019 claims since because their expert did not rely on the original slides which were lost or destroyed by the defendants.<\/p>\n
Texas Rule of Civil Procedure 192.3(e)(5) allows discovery of evidence of expert witness bias.\u00a0 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. \u00a0Russell v. Young, 452 S.W.2d 434, 436 (Tex.1970).<\/p>\n
Interestingly, a witness who admits bias or prejudice may be more protected from discovery than one who does not.\u00a0 See Olinger v. Curry, 926 S.W.2d 832 (Tex. App.\u2014Fort Worth 1996, orig. proceeding) (discovery of expert witness\u2019s tax returns not permitted when the witness admitted testifying for defendants 90% of the time).\u00a0 The Olinger court justified its decision, saying:<\/p>\n
Subjecting an expert medical witness in a civil case to produce income tax returns merely to show that he is a \u201cdefense\u201d 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.<\/p>\n
Id. at 835; see also, In re Weir, 166 S.W.3d 861 (Tex. App.\u2014Beaumont 2005, orig. proceeding).<\/p>\n
Relying on Olinger and Weir, the plaintiffs in In re Markis sought discovery of an expert\u2019s 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.\u00a0 217 S.W.3d 521 (Tex. App.\u2014San Antonio 2006, orig. proceeding).\u00a0 The Markis court refused to allow the discovery, saying:<\/p>\n
The basic premise of such reasoning is flawed\u2013 the simple denial of bias cannot logically equate to evidence of bias.\u00a0 If that were true, essentially all experts, except those who frankly concede a bias, would be subjected to discovery . . . .<\/p>\n
Id. at 525.<\/p>\n
So, the Texas Rules allow for a party to discover evidence of bias from an expert witness.\u00a0 However, so far, experts who admit bias have not been subject to discovery and experts who deny bias have not either.<\/p>\n
The Texas Occupations Code provisions related to medical care providers confer a privilege on medical peer review committee records and proceedings.\u00a0 Tex. Occ. Code \u00a7 160.007 (\u00abExcept as otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential.<\/p>\n
Introduction This paper discusses discovery and deposition strategies for medical malpractice cases.\u00a0 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.\u00a0 Depositions are discussed in Section III
LEER M\u00c1S<\/a><\/p>\n