Excerpted from: "Medical Malpractice: Making the Most of Pretrial Discovery,"
New Jersey Law Journal, August 8, 2005, by Amos Gern & John Ratkowitz.
To obtain a comprehensive understanding of your client's medical case, it is
essential that you create a narrative time line of your client's treatment
records. By organizing relevant physician notes, orders, consults, nurses
findings, and the results of diagnostic and laboratory tests in chronological
order before filing the suit, you will get a far better understanding of your
client's course of treatment than by simply reviewing a hospital or other
medical record, in the fortuitous manner it is presented.
Attorneys must insist on timely service of defendant's interrogatory
answers. It is common practice to receive incomplete answers from the defendant
to uniform interrogatories mandated by the court rules. A demand for more
specific answers to interrogatories will invariably be required, followed by a
formal motion addressed to the court. Even the most diligent attorney will find
it takes a minimum of four to six months before responsive answers are
provided.
It is common for defense counsel to interpose objections to uniform
interrogatory questions required by the court rules, to assert objections such
as the need for clarification of the interrogatory, an assertion that the
interrogatory calls for a legal conclusion, or a claim that the interrogatory is
unduly broad and overly burdensome. None of these objections have any merit in
view of the fact that
R. 4:17-1(b)4 requires that "every question
propounded by a uniform interrogatory must be answered unless the court has
otherwise ordered."
Uniform Interrogatory Form C(3), question 1, seeks the identity of every
person in the vicinity of the alleged occurrence. Defense counsel routinely
attempts to avoid giving an answer to this question by taking the position that
it is unclear what the "alleged occurrence" is. While such an answer
is improper under any circumstances, it can be even further avoided by
plaintiff's counsel providing detailed allegations in response to uniform
interrogatory form A(l), question number 7, which seeks plaintiff's contentions
as to the negligence of the defendants.
Uniform Interrogatory Form C(3), questions 2 and 3, seek detailed narratives
from the defendant physician regarding the care provided to the plaintiff.
Interrogatory 9 seeks a description of defendant's informed consent interview,
and interrogatory 15 requires an explanation from the physician defendant as to
why consultations were ordered and requests the reports received by the
defendant from such consults. Since it is common for physicians to recall
details about the care provided to a plaintiff that goes well beyond what has
been written in the defendant's medical chart, or to claim that what has been
written in the medical chart is merely a summary, plaintiff's counsel must
reject a defense response which generically references the medical records.
R.
4:17-4(a) requires interrogatory answers to be furnished "separately,
fully and responsively."
Id. It is the defendant's obligation to
collect information and supply it in the form required by the rule, and defense
counsel should not be permitted to allow their clients to cleverly avoid the
rule.
Seiden v. Allen, 135 N.J. Super. 253, 256 (Ch. Div. 1975).
Uniform Interrogatory Form C(3), question 4 requires the defendant to attach
a complete curriculum vitae. In the first instance, having this information
will avoid wasting valuable deposition time and costs to learn the details of a
defendant's professional background and education. Moreover, and more
importantly, the professional boards and societies to which a defendant belongs
often publish standards and practice publications that will serve to
corroborate your expert's opinions about such standards and eliminate much of
the debate on these issues at trial.
Uniform Interrogatory number 6 seeks complete information about past
malpractice suits. Since
R. 4:17-4 requires that responses be furnished
by supplying all information available to the party, the party's agents,
employees and attorneys, a defendant may not simply avoid providing a
responsive answer by claiming a failure to have such details committed to
memory. This information is clearly available to the doctor and his
counsel. Uniform Interrogatory number 11
seeks information about peer review materials. The ancillary information
concerning peer review meetings mandated by this interrogatory is not subject
to a claim of privilege. Whether a particular document resulting from a peer
review investigation is privileged depends on its substance and the
availability of the information contained in the document from other sources.
See
Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004). Defendants
should not be permitted to block all inquiry into this area of evidence by
asserting a blanket objection to a question which has been mandated by the
court rules.
Demands for documents pursuant to
R. 4:18-1 serve as an excellent
tool to buttress your expert's position regarding the standard of care from
which the defendant deviated. If a defendant physician is employed by a group
or organization, employment contracts or shareholder agreements executed by
members of such organizations often require the physician to practice medicine
in accordance with the standards of a particular professional society. Such
contracts and agreements may also delineate the defendant's responsibilities
with respect to rounding, being on call, supervising physician assistants and
residents, and interacting with other members of the group. While some of this
information may be confidential in nature, case law clearly establishes that
the information must be disclosed if relevant.
Lakewood Trust Co. of
Lakewood v. Fidelity & Deposit Co. of Maryland, 81 N.J. Super. 529 (Law
Div. 1963);
Gureghian v. Hackensack Hospital, 109 N.J. Super. 143, 148
(Law Div. 1970).
It is also not uncommon for physician groups to generate triage protocols
regarding communications between
patients and the office relevant to potential emergencies by telephone or
otherwise. If a hospital is a defendant in a case, resident codes of conduct,
resident/hospital employment contracts, medical staff bylaws, medical staff
rules and regulations, coding booklets and hospital protocols, are all
extremely useful in supporting plaintiff's expert testimony on applicable
standards. These materials become extremely useful where there are multiple
defendants in the case, all of whom are disclaiming responsibility for patient
monitoring, yet, nevertheless, fail to implicate one another.
