4 Steps Med-Mal Firms are Overlooking

While filing a complaint might seem like a routine effort, there are important considerations that can be made during the initial fact-finding process. Implementing these simple steps can add unexpected value in the beginning of, or throughout, litigation.

• Research the individuals, organizations and relationships: This step may seem obvious, but although it is common to name physician(s) and the hospital in a medical malpractice case, sometimes the physician group is overlooked when filing the complaint. Oftentimes, physicians are not employed by the hospital and may be part of a private group practice. Further, these groups could be owned by larger entities or holding companies which could be located in a different state. This basic research helps in naming the appropriate defendants.

• Look at Billing: Billing is usually considered when evaluating economic damages but has other important applications. All services that have been billed must be supported by clinical documentation, meaning that billing can be a great place to start when identifying the events of a medical malpractice case. Additionally, billing validates the professional and hospital components of the case (e.g. the physicians and places in which care was provided). This information can help clarify which defendants should be named.

• Explore the hospital’s website:

• Release of Information: The patient section of a hospital website can support some of the plaintiff’s requests. For example, the Release of Information form shows the formats (digital or paper), medical record sections (labs, imaging, notes), and release type (legal, clinical, self) that can be requested. These forms can be referenced as support in requesting the complete medical record in electronic format.

• Patient Portal: Another example is looking at whether a patient portal is available. Plaintiff attorneys can request access to these portals, which are interactive versions of the patient’s medical record. Note, however, that these portals can still be a limited version of the medical record.

• Patient Policies: Finally, exploring the patient’s Rights and Responsibilities or the Privacy and Security sections might reveal information about whether an accounting for disclosures, access log, or audit trail are maintained and producible in the normal course of business. Citing the website is a great way to obtain discovery that the defense may otherwise try to block.

• Consider unnamed parties: While it may be decided early in the case that some of the involved parties will not be named, do not discount their value in providing discovery. For instance, it may have been decided that a primary care provider is not responsible for any negligence but still received medical records or communications from a named specialized physician. The standard medical record could be requested from the primary care provider, but these standard releases may not contain the discovery of interest. Depending on state laws, the primary care provider could be subpoenaed to provide all records and communications received from the specialized physician. These documents may not otherwise be provided through the named parties in the case, and may contain discovery that would not otherwise be obtained.

To learn more about applying discovery strategies to healthcare cases, visit emrdiscovery.com.