DISCOVERY STRATEGIES IN MEDICAL MALPRACTICE CASES THINKING OUTSIDE THE BOX
by Elizabeth Pelypenko
Pelypenko Law Firm, P.C.
Reprinted From The Verdict - Winter 2003
A good discovery plan is the keystone of a successful medical malpractice suit.Due to space constraints, this paper will discuss several strategies involving research regarding your client, formal discovery, informal discovery, and approaches for deposition preparation of the defendant or his expert. The aim is to help you gather more than just information to avoid surprises, but information you can use to develop the themes of your case and create a successful outcome.
I. Informal Discovery Regarding Your Own Client
A. Client’s Medical Record Request
You cannot successfully prepare a medical malpractice case until you have obtained all pertinent records regarding your client. This can be a painstaking process, but it is critical in terms of your own preparation, and to make certain that no untoward surprises are contained in any records. Send requests for documents which include all medical care provider records, including third parties, hospitals, clinics, physician offices, psychiatry and/or psychological facilities, pharmacy records; physical therapy facilities, and any outpatient radiology  and laboratory facilities, etc.
When obtaining records, your release and request should include: any and all medical records, including those that are written, computer generated, on microfilm, disk, etc. Ask for any and all medical authorizations; incident reports; billing statements; billing records;insurance correspondence; inpatient requisitions; outpatient requisitions; office notes; progress notes; consultation notes; nurses notes; physician notes; progress notes; admission notes; discharge summaries; surgical notes; anesthesia records; recovery room/PACU (post-anesthesia care unit) records; radiology reports, laboratory reports; pathology reports; cytology reports; medication records; blood transfusion records; in-house pharmacy records; and transfer records. Although the defendant healthcare provider(s) may have treated your client on an inpatient basis only, remember he or she often keeps medical and billing records regarding your client at his or her office. If your case involves wrongful death, obtain the death certificate, complete autopsy records, autopsy photographs, autopsy specimens, complete coroner’s report, and any county investigational reports.
B. CLIENT RESEARCH
In addition to the client’s medical records, consider looking into the following areas to help you prepare your medical malpractice case:
Disability records from the Social Security Administration.
Medicare, Medicaid or any other medical insurance carrier records.
Life Insurance Policy records.
Employment records, including salary records.
Criminal background check (federal and state).
Previous lawsuits (both Plaintiff and Defendant)
U.S. citizenship records from the United States Department of Immigration and Naturalization ( www.uscis.gov).
II. Formal Discovery
You should always serve initial discovery (including interrogatories, requests for production of documents, and requests for admission) along with the complaint when a new case is filed. This way, you can obtain some basic information early on from the defendants, as well as information that is more out of the ordinary. In addition to the stock set of interrogatories, which can get you the names of witnesses the defendant(s) have or intend to call, exhibits they plan to use, identity of their experts and the defendants’ insurance information, etc., you should add interrogatories which request information on the defendant’s education, training, experience, residencies and board certifications, which can sometimes be obtained simply by requesting a copy of a defendant’s curriculum vitae. Consider adding some of the following to your stock set of requests for production of documents:
- Department specific policies, procedures, guidelines and regulations regarding the claim in question.
- Administrative By-laws.
- Advertising that has been released to the public (commercials, billboards, flyers, community magazines, etc.) 
- Surveillance videos (i.e.: emergency room, specialty units, etc.)
- Any photographs or video, including audio, of any surgical or diagnostic procedures that involved your client.
- Incoming and outgoing telephone logs as well as email and inner-office correspondence.
- Medical Record department check-in and check-out logs. When a chart is requested from a medical facility, a record is kept of who requested that chart, when it was requested, and how long the chart was checked-out. This can be a powerful tool when medical record tampering is an issue.
When you have sued a hospital in addition to individually named defendant physicians, include an interrogatory to the hospital which asks if the National Practitioner Data Base was queried when the hospital granted privileges to the physician (and every two years thereafter). If the hospital responds they did not obtain the information then you can file their answers and your requests with the National Practitioner Data Bank in your attempt to get the information on the physician. The following is an interrogatory you could send to the hospitals:
- Did you make a query to the National Practitioner Data Bank pursuant to the Health Care Quality Improvement Act of 1986 regarding Dr. ______________? If the answer is yes, please state each and every year you have made such query and state:
- The results received from the National Practitioner Data Bank for each and every query; and
- Please provide all letters, responses, or other documents sent to the National Practitioners Data Bank.
A hospital must provide the plaintiff with the requested information, or confirm that it failed to request information from the Data Bank as required by federal regulations, at which point the plaintiff’s attorney will be entitled to obtain the information directly through the use of 45 CFR § 60.10 and 60.11. 
Further, “a hospital has a direct and independent responsibility to its patients to take reasonable steps to ensure that staff physicians using hospital facilities are qualified for privileges granted.” The definition of “peer review” addresses the evaluation of the quality and efficiency of actual medical care services and does not encompass the credentialing process to the extent that every decision to extend or maintain staff privileges is a peer review function. 
The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) is an independent, not-for-profit organization that is governed by a board of physicians, nurses, and consumers, which sets standards and measures health care quality. The standards it promulgates provides fertile ground for inquiry from defendant hospitals. Various aspects of surveys and performance reports such as those performed by JCAHO are not privileged nor protected by medical review committees and peer review privileges. JCAHO’s website provides a good deal of information at www.jcaho.org. Additionally, JCAHO’s standards in its Accreditation Manual for Hospitals are a good source of specific areas into which to inquire regarding the credentialing process of physicians who have privileges at a particular institution. JCAHO has written criteria for staff appointments that must include consideration of a physician's training, competence, character, and judgment. Therefore, areas of inquiry could be: the facility's standard of character and judgment for appointment; how they measure judgment and character, etc.; what the credentialing committee relied upon to determine that the applicant had the requisite character and judgment, etc. The facility may not rely solely upon the fact that a physician is or is not board certified to make judgment on medical staff membership.
The following is a sample of requests for production of documents you may serve upon a defendant hospital regarding specific practitioners, which could be useful in pursuing a negligent credentialing claim against a hospital:
- Legible copies of any and all policies, procedures, protocols, rules, regulations and guidelines pertaining to any JCAHO-approved procedures your facility has delineating the procedure used to evaluate the credentials of physicians.
- Legible copies of any and all documentation that shows that said JCAHO-approved procedures referenced in Request for Production No. ___ (immediately above) were used to evaluate the credentials of Defendant Dr. ___________.
- Legible copies of any and all documentation that shows all steps taken to ensure that Defendant Dr. _____________ was qualified for the privileges granted.
- Legible copies of any and all documentation that shows all steps taken to ensure that Defendant Dr. _____________ had current licensure at his most recent renewal of clinical privileges prior to seeing (plaintiff), pursuant to JCAHO Hospital Accreditation Standard MS.5.4.3.
- Legible copies of any and all documentation that shows all steps taken to ensure that Defendant Dr. ____________ had relevant training or experience at his most recent renewal of clinical privileges prior to seeing [plaintiff], pursuant to JCAHO Hospital Accreditation Standard MS.5.4.3.
- Legible copies of any and all documentation that shows all steps taken to ensure that Defendant Dr. ____________ had current competence at his most recent renewal of clinical privileges prior to seeing [plaintiff], pursuant to JCAHO Hospital Accreditation Standard MS.5.4.3.
- Legible copies of any and all documentation that shows all steps taken to ensure that Defendant Dr. _____________ had ability to perform the privileges requested at his most recent renewal of clinical privileges prior to seeing [plaintiff], pursuant to JCAHO Hospital Accreditation Standard MS.5.4.3.
- Legible copies of any and all documentation that shows how many patients Defendant Dr. _____________ saw at your facility from 12am, __________ until 12am ____________. You may redact patient names to ensure confidentiality.
- Legible copies of any and all documentation that shows all steps taken to appraise Defendant Dr. _______________ for reappointment to the medical staff or renewal or revision of clinical privileges based on ongoing monitoring of information concerning his professional performance, pursuant to JCAHO Hospital Accreditation Standard MS.5.12.1.
- Legible copies of any and all documentation that shows all steps taken to appraise Defendant Dr. ______________ for reappointment to the medical staff or renewal or revision of clinical privileges based on ongoing monitoring of information concerning his judgment, pursuant to JCAHO Hospital Accreditation Standard MS.5.12.2.
- Legible copies of any and all documentation that shows all steps taken to appraise Defendant Dr. ______________ for reappointment to the medical staff or renewal or revision of clinical privileges based on ongoing monitoring of information concerning his clinical or technical skills, pursuant to JCAHO Hospital Accreditation Standard MS.5.12.3.
- Legible copies of any and all documentation that confirms the occurrence of a sentinel event regarding [plaintiff’s] care or treatment at your facility and JCAHO’s intent to evaluate this occurrence.
- Legible copies of any and all documentation that confirms whether an on-site evaluation of your organization in which a sentinel event regarding [plaintiff’s] care or treatment at your facility has occurred is to be or has been conducted.
- Legible copies of any and all documentation that confirms the number of JCAHO standard-related written complaints filed against your facility and those that have met prospective criteria for further active review in the five (5) years prior to [plaintiff’s] admission.
- Legible copies of any and all documentation that shows Defendant Dr. ____________’s delineated clinical privileges, pursuant to JCAHO Hospital Accreditation Standard MS.5.14.
- Legible copies of any and all documentation that shows Defendant Dr. _____________’s clinical privileges are hospital specific and based on his demonstrated current competence, pursuant to JCAHO Hospital Accreditation Standard MS.5.15.
- Legible copies of any and all documentation that shows Defendant Dr. _____________’s clinical privileges are related to his documented experience in categories of treatment areas or procedures, pursuant to JCAHO Hospital Accreditation Standard MS.126.96.36.199.
- Legible copies of any and all documentation that shows Defendant Dr. ______________’s clinical privileges are related to the results of his treatment, pursuant to JCAHO Hospital Accreditation Standard MS.188.8.131.52.
- Legible copies of any and all documentation that shows Defendant Dr. ______________’s clinical privileges are related to the conclusions drawn from organization performance-improvement activities, pursuant to JCAHO Hospital Accreditation Standard MS.184.108.40.206.
- Legible copies of any and all documentation that shows when a medical record is considered delinquent at ___________ Hospital (i.e., when it has not been completed within a specific time following the patient’s discharge, which time period is spelled out in the medical staff’s rules and regulations and cannot exceed 30 days), pursuant to JCAHO Hospital Accreditation Standard IM.7.6.
Together with these, send corresponding interrogatories, such as the following:
- Describe all steps taken by _____________ Hospital to ensure the Defendant Dr. ______________ was qualified for the privileges he was granted, and for each time his privileges were renewed, as required by JCAHO Hospital Accreditation Standard MS.5.4.3.
- Describe all steps taken by ______________ Hospital to appraise Defendant Dr. ______________ for appointment to the medical staff or for granting privileges based on ongoing monitoring of information concerning his professional performance for the privileges he was granted, and for each time his privileges were renewed, as required by JCAHO Hospital Accreditation Standard MS.5.12.1.
- Describe the standards for character and judgment that were used by ____________ Hospital for appointment to the medical staff or for granting privileges used to determine that Defendant Dr. _____________ had the requisite character and judgment for the privileges he was granted, and for each time his privileges were renewed, as required by JCAHO Hospital Accreditation Standard MS.5.12.2.
- Describe all steps taken by ______________ Hospital to appraise Defendant Dr. ______________ for appointment to the medical staff or for granting privileges based on ongoing monitoring of information concerning his clinical or technical skills for the privileges he was granted, and for each time his privileges were renewed, as required by JCAHO Hospital Accreditation Standard MS.5.12.3.
In the Requests for Admissions, which you should send out with a complaint, always include the following among the stock set that you serve:
- ______________ Hospital participates in the Federal Medicare Program, and did so as of ________, 200_.
- The Federal Medicare Program requires, under 42 CFR §482.12 (e) that “the governing body must be responsible for services furnished in the hospital, whether or not they are furnished under contract.”
- That ____________ Hospital is responsible for the services provided at _____________ Hospital, whether said services be provided by physicians, nurses, or other healthcare providers within the confines of _____________ Hospital.
These should be used because a hospital’s participation in Medicare may subject it to nondelegable responsibility under federal law for the acts of the physicians it provides. Medicare regulations address a wide range of services such as anesthesia, emergency care, etc. and the regulations often state that the hospitals are responsible for those services if it provides them.
III. Informal Discovery
Much information can be garnered informally through correspondence with various agencies, or by accessing their websites. The information can then be used to prepare written discovery to the various defendants, or can be used to obtain ammunition for cross-examination of defendants and their experts.
A. Freedom of Information Act (FOIA) Research
The FOIA, which allows one to request copies of records not normally prepared for public distribution, pertains to existing records and does not require agencies to create new records or do research or analyze date. However, the records that are available can provide a wealth of knowledge about a facility, drug, or product. As part of your preparation of any medical malpractice case, consider requesting information from the following agencies:
Department of Human Resources (www.dhr.georgia.gov). This agency, which is state specific, provides numerous programs that ensure statewide health and welfare. Specifically, the Office of Regulatory Services within this agency inspects, monitors, licenses, registers, and certifies a variety of healthcare facilities. Requests regarding particular facilities can provide you with occasions where the facility was found to be deficient in complying with the state’s requirements, if it was required to prepare a plan to bring it into compliance, etc.
Centers for Medicare and Medicaid Services (www.cms.hhs.gov). This agency, which is a national network that includes all 50 states, administers the Quality Improvement Organization, which monitors the quality of care for Medicare and Medicaid recipients. Again, request information regarding particular facilities.
Food and Drug Administration (www.fda.gov). This federal agency regulates food, drugs (prescription and over-the-counter), medical devices, vaccinations, cosmetics, and radiation-emitting products (cell phones, microwaves, etc.). Much information can be gathered from its website based upon which a more specific written request can be sent requesting, for example, reported adverse outcomes from the use of a particular drug, medical device or other product, etc.
B. Independent Medical Research
A vast array of resources are available on the internet to assist you in researching a medical malpractice case, including medically-related sites to help in finding journal articles, as well as sites that can actually help you analyze data from a client’s medical records so that you know what it may signify (such as with lab results).
This is but a small sampling of some of the websites you may find helpful in preparing a medical malpractice case:
- MedLine (www.nlm.nih.gov/medlineplus/organizations/all_organizations). This excellent website provides direct links to numerous medical societies, organizations, and research groups.
- WebMD (www.webmd.com)
- American Cancer Society (www.cancer.org)
- Medical Related Articles (www.findarticles.com)
- American Heart Association (www.americanheart.org)
- Explanation of laboratory tests (www.labtestonline.org)
- Medical Library (www.oxygen.com)
- Consumer Drug Information (www.fda.gov/cder/consumerinfo)
- Medical Dictionary (www.medicinenet.com)
- American Stroke Association (www.strokeassociation.org)
- National Library of Medicine (www.nlm.nih.gov)
- U.S. Department of Health and Human Services (www.healthfinder.gov)
- College of American Pathologists (www.cap.org).
IV. Approaches to Preparation to take the Deposition of the Defendant or his Expert
A. Research Regarding an Individual Practitioner
Using the curriculum vitae, which you obtained in response to your initial set of discovery, or if no CV is available, then through other information you gained through interrogatory responses, you have a springboard to begin to research the background of a particular physician, be it the defendant or an expert witness. The following websites can be extremely helpful in providing much background information on a particular practitioner:
State Licensure (www.iatrogenic.org). This website provides the addresses, telephone numbers, and often the homepage address of the state medical boards for all 50 states. Although each state board varies, most often it will provide such information as date of initial licensures, license status, professional business location, and if any disciplinary action has been taken in the past against the licensee. Remember to check any and all states where a physician previously had or might currently have licensure, or states where a physician continues to have licensure but no longer practices there.
- American Medical Association (www.ama-assn.org). This organization is an advocate for both patients and physicians. It develops and promotes medical practice, research, and education across the United States. Also, remember to research your state’s medical association (e.g. The Medical Association of Georgia: www.mag.org).
- American Board of Medical Specialties (www.adms.org). This is an umbrella organization that maintains a list of those physicians who are board certified. In addition of certification status, this organization includes the exact medical area(s) of the individual’s certification with an explanation of his or her specialty.
Further, remember also to check the following areas for each practitioner:
- Memberships to organizations, societies, clubs, etc. (professional, personal and religious). Look at the website for each such organization, and try to find what the purpose of the group is and/or their credo, what type of pledge they may have taken when joining the organization or society, etc.
- Additional business endeavors, including those that may not be medical related.
- The individual’s personal, professional, and/or business websites.
- Applications for licensure, certification, malpractice insurance, and hospital/clinical privileges.
- Articles, research papers, or other medical writing that has been authored or co-authored.
- Educational lectures, speeches, and/or presentations that have been attended and/or given.
- Previous lawsuits, whether plaintiff or defendant, in addition to any previous depositions, including any expert witness testimony.
Medical malpractice cases are won and lost in discovery. Be thorough in the discovery you propound to the defendants to eliminate their opportunities to escape liability. Use resources available in public records through FOIA to bolster your position. The Internet is invaluable to supplement the information and records you have already obtained and to uncover additional avenues of inquiry. A well thought out and complete discovery plan maximizes your chances for a fair settlement or a favorable trial outcome.
Copyright © Elizabeth Pelypenko 2003. All rights reserved.
When obtaining radiographic records, make sure to obtain copies of all films including scans, arteriograms, cystograms, cardiac catheterizations, nuclear scans, moving films and/or videos, angiograms, etc. Often x-rays exist, but no correlating report can be located, and visa versa. Remember to also provide your experts with copies of any and all films.
When obtaining laboratory records, also obtain the original cytology slides and pathological specimens if they relate to your case (i.e.: pap smears, cultures, biopsies, surgical specimens, etc.). As with x-ray films, remember to provide your pathology/cytology expert with the actual slides and specimens. Since the originals of these specimens are often released to you for only a certain period of time, you may wish to have color photographs and copies made for future depositions, exhibits, etc.
When obtaining billing records and insurance correspondence, make sure you include each and every defendant, and all third parties, hospitals, clinics, outpatient facilities, pharmacies, etc. These records not only assist you with your damage claim, but they often prove or disprove what services were and were not rendered by the defendant(s).
 For example, a request for production might read:
All advertising literature or documents of any kind whatsoever, including, but not limited to, newsletters provided by Defendant ___________ Hospital or any other facility or organization on its behalf, to physicians, other health care providers and/or facilities, and the community as part of an effort to encourage the public to use ____________ Hospital.
45 CFR § 60.10 covers information hospitals must request from the National Practitioner Data Bank:
(a) When information must be requested. Each hospital, either directly or through an authorized agent, must request information from the Data Bank concerning a physician, dentist or other health care practitioner as follows:
- At the time a physician, dentist or other health care practitioner applies for a position on its medical staff (courtesy or otherwise), or for clinical privileges at the hospital; and
- Every 2 years concerning any physician, dentist, or other health care practitioner who is on its medical staff (courtesy or otherwise), or has clinical privileges at the hospital.
(b) Failure to request information. Any hospital that does not request the information as required in paragraph (a) of this section is presumed to have knowledge of any information reported to the Data Bank concerning this physician, dentist or other health care practitioner.
45 CFR § 60.11 provides in pertinent part:
- Who may request information and what information may be available.Information in the Data Bank will be available, upon request, to the persons or entities, or their authorized agents, as described below:
(5) An attorney, or individual representing himself or herself, who has filed a medical malpractice action or claim in a State or Federal court or other adjudicative body against a hospital, and who requests information regarding a specific physician, dentist, or other health care practitioner who is also named in the action or claim. Provided, that this information will be disclosed only upon the submission of evidence that the hospital failed to request information from the Data Bank as required by Sec. 60.10(a), and may be used solely with respect to litigation resulting from the action or claim against the hospital….
Candler General Hospital, Inc., v. Persaud, 212 Ga. App. 762, 766 (2), 442 SE2d 775 (1994).
OCGA § 31-7-131(1).
- The dates of the triennial surveys;
- The accreditation decision based on those surveys;
- The organization’s current accreditation status, including designation and the date on which that designation became effective;
- The date of any follow-up activity for the organization;
- The organization’s overall evaluation score based on the triennial survey and national comparison to scores for comparable organizations;
- The organization’s score for each performance area evaluated and national comparison to scores for comparable organizations;
- Subsequent resolution of recommendations for improvement and the date(s) of resolution;
- The organization’s updated overall evaluation score and performance area scores;
- Organizational and operational components included in the accreditation survey;
- Performance areas that have recommendations for improvement;
- Subsequent change(s) in accreditation status;
- The organization’s accreditation history;
- Any special recognition conferred on the organization;
- Survey fees paid by the accredited organization;
- The organization’s scheduled survey date(s) once the organization has been notified of the dates;
- Confirmation of the occurrence of a sentinel event in an accredited organization and JCAHO’s intent to evaluate this occurrence;
- Applicable standards used for an accreditation survey;
- If a tailored survey was performed, the organizational component(s) contributing to a conditional accreditation or denial of accreditation decision;
- Whether there were any recommendations for improvement for which JCAHO had no, or insufficient, evidence of resolution when an organization withdraws from accreditation;
- The performance areas for which JCAHO had no, or insufficient, evidence of resolution of recommendations for improvement when an organization withdraws from accreditation;
- Whether an on-site evaluation of an organization in which a sentinel event has occurred is to be or has been conducted;
- The number of standard-related written complaints filed against an accredited organization and those that have met prospective criteria for further active review;
- The applicable standard areas involved in a specific complaint review;
- The performance areas in which a recommendation for improvement was issued as a result of complaint evaluation activities;
- Any determination that the complaint is not related to JCAHO standards;
- If the complaint is related to standards, the course of action to be taken regarding the complaint;
- Whether JCAHO has decided to take action regarding an organization’s accreditation status following completion of the complaint investigation; and
- Any change in an organization’s accreditation status following completion of the complaint investigation.
42 CFR §482.12(e) states:
(e) Standard: Contracted Services. The governing body must be responsible for services furnished in the hospital whether or not they are furnished under contracts. The governing body must ensure that a contractor of services (including one for shared services and joint ventures) furnishes services that permit the hospital to comply with all applicable conditions of participation and standards for the contracted services.
- The governing body must ensure that the services performed under a contract are provided in a safe and effective manner.
- The hospital must maintain a list of all contracted services, including the scope and nature of the services provided. (Emphasis added)
 The author wishes to acknowledge and thank her paralegal Janice Hobbs for her input and contribution to this article.
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