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Discovery Techniques in Medical Malpractice Cases

In medical malpractice cases, “discovery” is the term used to describe the process of sharing information about the case between the parties to the case. Discovery is essential to a medical malpractice case. It is how the plaintiff develops his or her case and how the defendant prepares his or her defense. There are many discovery methods employed in medical malpractice cases. Each method is governed by rules that the parties must follow. Judges will intervene if any party violates the discovery rules. Three of the most popular discovery techniques are described below.


One of the first discovery devices attorneys use in medical malpractice cases are written interrogatories. Interrogatories are often served either with the summons and complaint or shortly thereafter. Interrogatories are questions concerning the case that must be answered in writing. Interrogatories often include broad questions intended to disclose the answering party’s theory of the case, defenses, and damages. In addition, interrogatories in medical malpractice cases usually ask the answering party to identify the expert witnesses that will be participating in the case. The party answering the interrogatories must swear to the accuracy of the answers. Sometimes, parties will not fully answer interrogatories or will state that the information is not yet known. Parties are obliged to update interrogatory answers during the pendency of the case if additional information is learned.

Requests for Production

Another discovery method commonly employed in medical malpractice cases is the request for production of documents. Requests for production ask the opposing party for documents that support the prosecution or defense of the case. In medical malpractice cases, most of the documents requested are medical records, laboratory reports, x-rays or other radiological films, and even pathology materials. In responding to a request for production, parties sometimes claim that the documents sought are privileged and, thus, do not have to be produced. In cases of an asserted privilege, the court makes a determination of whether the document must be produced.


A deposition is an interview of a party or other person involved in the case. Depositions are taken under oath. Depositions are used to gather as much information as possible about a case. Depositions are also useful to size up a party or witness and determine how a jury might react to his or her testimony. Prior to a deposition, the party or witness to be deposed is usually well coached by his or her attorney. Because the attorney taking the deposition has the opportunity to follow up on answers provided and to delve deeply into claims made, the deposition has the potential to make or break a medical malpractice case.