Bruce G. Fagel Medical malpractice:
Beyond the discovery “three step” Putting a case in context for the jury requires finding background information that supports your theory of liability and your expert witnesses
The traditional and time-honored
method of discovery in all medical mal- practice cases involves three separate steps: First, obtaining the complete med- ical records on the plaintiff from all doc- tors and hospitals involved in the care; second, sending those records to a med- ical expert, who hopefully provides a favorable opinion on negligence and cau- sation; and, third, taking depositions of defendant doctors and nurse employees of defendant hospital to find out what they meant in the medical records they authored. Since the defendants control the fac-
tual side of the case with their entries in the medical records and their interpreta- tion of what those entries mean – and with experts who can explain why the defendant was not negligent and/or not the cause of the injury or death – the defense is almost assured of a jury verdict in their favor. Further, medical-malpractice cases
always involve a specific patient, without any evidence of prior incidents or prior litigation. What should be the most important document in any medical- malpractice case – the report of the hospital committee that investigated the incident – is absolutely immune from dis- covery. This leaves the injured plaintiff with secondary sources of evidence – the medical records and depositions of the defendants. But when the case gets to trial, the
jury always wants to know the full context of the case. Was this injury or death an isolated incident or does it represent only a piece of a larger puzzle? Demonstrating that the instant case is just a piece of a larger puzzle might evoke the jurors’ con- cern for patient safety, including their own. To develop this kind of evidence
76 — The Advocate Magazine FEBRUARY 2012
requires that the plaintiff ’s attorney conduct discovery that is well beyond the traditional “three step” of records, depositions, and experts.
Hospital discovery All hospitals have written policies
and procedures for each department of the hospital, from the kitchen to the Intensive Care Unit, and everything in between. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) requires all of the nation’s 6,000 hospitals that they accredit to have writ- ten policies and procedures for each hos- pital department. JCAHO does not tell the hospitals what specifically must be in those policies, only that they have such policies. As a result, there is wide varia- tion between hospitals regarding what is actually in each policy, and which situa- tions or procedures have a written policy.
These policies are usually contained
in large three-ring binders in each of the hospital departments, and there may be considerable overlap between different departments that often share responsibil- ity for a patient, such as L&D and the nursery, or between Surgery and the PACU. These policies require periodic review and revision, and there is usually a separate hospital policy about the requirements for such review and revi- sion, and these are often different between different hospitals. The number or size of such hospital policies and pro- cedures bears little relationship to the size of the hospital, and a small hospital may have more volumes of policies than a much larger hospital. Each written policy should provide
information about who wrote the policy and to whom it applies; they often
reference outside literature that supports the policy. However, the name of the poli- cy for a specific situation is often different in different hospitals, and since a request for production of a document should be as specific as possible, an initial request should be made for the table of contents and/or index of all written hospital poli- cies and procedures from all departments that are relevant to the case. After a review of such an index, a specific request can then be made for all relevant documents, without drawing an objection for being overboard, or “a fishing expedition.” In addition to providing critical
information about whether the hospital violated its own policies in the care pro- vided to the plaintiff, they will provide the names of the individuals responsible for drafting the policy. Such individuals are more likely to admit at deposition that a specific nurse violated a specific policy in relation to the plaintiff ’s care, and while such an admission may not prove a violation of the standard of care, it can go a long way for a jury, and it becomes very difficult for an insurance claims’ rep to ignore. Many hospitals are part of a larger
chain of hospitals (Sutter, CHW, Kaiser, HCA, etc) and there has been a growing effort by such chains to have specific writ- ten policies that are designed to apply to all hospitals in the group. However, this is not an automatic and uniform policy and sometimes a policy that is designed to apply to all hospitals in the group has not been adopted in a specific hospital, and therefore would not be produced in response to a request to the defendant hospital. But if the corporate group that owns and operates the hospital is also a defendant, discovery can be directed to the corporate owner for policies that
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