Posted on 05/12/2021

What is the Discovery Process for a Medical Malpractice Case?

What is the Discovery Process for a Medical Malpractice Case?

Discovery is the formal legal process attorneys use to collect relevant information about a case. Discovery allows both plaintiff and defendant to learn what information the other side has and knows.

The medical malpractice discovery process also helps uncover meaningful evidence that aids your complaint. Discovery is intended to help both sides of a case adequately prepare for the case and avoid surprises.

Why the medical malpractice discovery process matters 

The medical malpractice discovery process helps your attorney adequately prepare for your case while gathering vital supporting information. Information uncovered during the discovery process can be used against the other party or aid either side during settlement efforts.

What does the medical malpractice discovery process consist of? 

The medical malpractice discovery process typically involves four parts: 

  • Interrogatories
  • Documentation requests 
  • Requests for admissions
  • Depositions


Interrogatories are a set of written questions put forward by one side in a lawsuit. The other party in the lawsuit must answer the questions to the best of their ability and knowledge. Interrogatories are answered under oath.

Examples of interrogatories include:

  • Insurance coverage information, including coverage limits
  • The identity of any expert witness who will provide testimony in the case
  • The identity of any other witnesses to be called in the case
  • Description of how the injury or incident occurred
  • Identity of any other parties who potentially share responsibility in the case
  • Information detailing any medical treatment received or other claimed losses

If new information becomes available once the interrogatories have been submitted, that additional information must be submitted under oath.

Documentation requests 

This is the point in a medical malpractice discovery process when one party provides evidence to the other upon request. A party may choose to respond to documentation requests by providing copies of the documents requested, objecting to the documentation request, or providing the other party with an opportunity to review the documents requested but make copies.

Documentation requests can include:

  • Accident or police reports
  • Medical records, including surgical records, doctor’s notes, nursing notations, or treatment records
  • Medical bills or proof of medical expenses
  • Employment records that confirm time away from work or wages lost as a result of the injury
  • Any documents or other written material regarding diagnosis and treatment of the medical condition in the case
  • Any medical publications, books, or articles that the defendant claims supports their action or inaction

Requests for admissions

Requests for admissions present a set of assertions to the other party, asking them to confirm or deny each one. Admissions requests can help narrow the scope of issues relevant to your case and ensure your attorney doesn’t waste time on non-contested issues.

If one side admits specific facts, and the other side confirms those admissions, they can then be introduced as fact without additional steps to prove or validate them.

Examples of requests for admissions include:

  • That the defendant found the [name of individual] to be a person who provided a credible and accurate medical history
  • The medical records from [name of medical center] for the dates provided are authentic


Depositions are recorded question and answer sessions with either a potential witness or one of the parties involved in the case. Depositions are done under oath, and a court reporter is present to record both the questions and the responses. Depositions can also be audio or video recorded. Depositions are commonly used to effectively negotiate a settlement or develop a legal strategy.  

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Statute of limitations and the discovery rule

The deadline by which someone can file a medical malpractice lawsuit is called the statute of limitations. Most states have statutes of limitations that range between two and six years.

In the case of a two-year statute of limitations, someone would have two years from the date the alleged medical malpractice occurred to file a lawsuit. For example, if you had surgery and a doctor made a mistake during your surgery that resulted in injury, you would have two years from your surgery date to file a lawsuit.

The discovery rule can alter the statute of limitations filing deadline. 

The discovery rule takes into account that someone who has suffered an injury may not be aware of their legal claim, and they shouldn’t be penalized because they were delayed in discovering harm. The main purpose of the discovery rule is to provide an injury victim with the opportunity to file a lawsuit after the statute of limitations has expired if they were unaware they had a valid claim.

In other words, if you didn’t know you had a medical malpractice claim and there was no way you could reasonably have learned this, you could potentially apply the discovery rule and file a medical malpractice lawsuit despite an expired statute of limitations.

Reasonable and sufficient notice

The discovery rule is rooted in “reasonable and sufficient notice.” This refers to the understanding that the statute of limitations begins when the patient should reasonably have known they were the victim of medical malpractice. For example, if you experienced wrong-site surgery, this would likely be evident immediately following your surgery. However, if you were diagnosed as having a surgical instrument left in, you may not be aware of that until days, weeks, or even months later, thereby delaying the “start” of the statute of limitations period. 

What happens next?

Medical negligence and errors can result in serious injuries, disabilities, or even death. If you or a loved one have suffered due to medical negligence or wrongdoing, you may be able to file a lawsuit and pursue compensation. 

We put our 25 years of medical malpractice experience to work for you. Contact us today to book a free, no-obligation consultation.

We take a genuine interest in our client’s cases, and because we work on a contingency basis, we only get paid after you receive a settlement. That means you can concentrate on the important things, such as taking care of your family or focusing on recovery — while we work hard on your claim.

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