Discovery is a formal phase in a birth injury lawsuit where the two parties, the victim (plaintiff) and the negligent health care provider (defendant), attempt to find out as much as they can about the case. The purpose is simple—the trial should be about facts and the search for the truth, and each side should have access to the same information to prove their case. Importantly, justice is not served by surprise.
Phases of Discovery
Though discovery is not formally divided into phases, there are commonly two different types of discovery: factual and expert.
Factual discovery is where the parties look for information to inform their experts’ opinions and to convince the jury that their side is right. Birth injury lawsuits, particularly those involving cerebral palsy and shoulder dystocia injuries, require a great deal of factual discovery so that experts can make their opinions. The attorneys will look for information about what the health care providers did and didn’t do during pregnancy, labor and delivery. They will examine the health of the baby during that time and immediately after birth. They will look at the baby’s physical, mental and psychological condition since birth. They will investigate the background of the parents, including family history of medical disease and criminal history.
During this time, you may help your lawyers by answering written questions called interrogatories, providing important documents, and by giving a deposition (a recorded statement under oath).
By contrast, after the factual discovery is completed and experts of the plaintiff and the medical provider have all of the information they need, the parties will conduct discovery of the expert opinions. Sometimes this means that experts will write reports. It often means that parties will take depositions of the experts. The whole goal is to determine what the opposing party’s experts will say, and to find ways to contradict their opinions.
Types of Discovery
These are the main types of discovery:
- Interrogatories: Each party is allowed to send to the other parties a list of written questions to be answered under oath. Some states place a limit on the number of questions that can be asked—often thirty. These typically include basic information—identification of experts, amount of insurance available, the damages claimed, the names of witnesses, etc….
- Requests for Production of Documents: Each party is allowed to ask the other parties to produce documents for inspection. The documents requested typically include medical records and bills, incident reports, witness statements, insurance policies, expert reports, photographs, and other records important to the case.
- Requests for Admission of Fact: This is used to help the parties agree on certain aspects of the case to streamline what the parties are fighting about. A party may seek an agreement that the medical bills are authentic, for example, to remove the necessity of calling a hospital administrator to testify that the bills are accurate.
- Depositions: Depositions can be taken of parties, witnesses and expert witnesses. This is a formal proceeding where the “deponent” is asked questions under oath by the lawyers of the parties. Depositions often last anywhere from thirty minutes to several hours. The court reporter will type up a transcript of what was said, and that transcript can be used as evidence in the case. Some depositions will be videotaped.
- Subpoenas: Each side has the right to demand documents from some third parties. The defense often seeks medical records from prior hospitalizations of the plaintiff by other institutions to verify pre-existing medical conditions.
Your Role In The Discovery Process
The plaintiff’s help is critical for written discovery (interrogatories and requests for production) and the plaintiff’s deposition. The plaintiff will sign the interrogatories under oath, and those answers will be important at trial. If the plaintiff tells a different story at trial, the interrogatories can be used to impeach the client, casting doubt on his testimony. The plaintiff will also help to identify important documents (diaries, calendars, bills and other documents).
The plaintiff will be deposed in most cases. The plaintiff’s lawyers will spend a great deal of time to prepare the plaintiff for deposition, and to ensure that the plaintiff is prepared for all of the defense lawyer’s “tricks.” The deposition is often attended by an insurance adjuster, and a good deposition can often lead to birth injury settlement negotiations.
Our medical malpractice lawyers have managed discovery of medical malpractice cases from across the country. Our role is to make sure that the evidence necessary to prove your birth injury malpractice claim is collected, and that the opposition has limited ability to refute our evidence. Call us at (440) 252-4399 or send us an online message for more information.