Discovery Archives - The Thompson Law Firm

Med Mal Plaintiffs (Still) Have Privacy Rights

Bill Thompson — Tue, 19 Mar 2024 16:06:43 +0000

It isn’t often that Florida appellate courts elevate the privacy rights of plaintiffs over the discovery needs of hospitals and doctors in a medical malpractice case. So this will be a great help.

“We understand the burden that in-camera inspections put on busy trial judges,” the panel said. “Nevertheless, that burden may be necessary to protect privacy rights.”

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1814333?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2024-03-19&read_main=1&nlsidx=0&nlaidx=11?copied=1

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Discovery Disputes

Bill Thompson — Wed, 25 Oct 2023 13:39:13 +0000

Discovery disputes that linger without resolution can materially affect the outcome of the case. In a Fort Lauderdale wrongful death case against Tesla, a Judge recently struck a human factors expert witness from the plaintiff’s witness list because the opinions were not timely disclosed, The lawyer for the parents off the decedent claimed the late disclosures were created by Tesla’s failure to produce the requested vehicle information for years. The Judge indicated that a second expert witness for the plaintiff may also be precluded on similar grounds. Companies like Tesla pay their lawyers to drag these disputes out, hoping to create just this kind of prejudice.

“Going back to your question of when does it end,” Gdanski said to Judge Speiser, “that begs the question of when does it start? I tried to start this four, five years ago when we asked for this data.”

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1732558?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2023-10-25&read_main=1&nlsidx=0&nlaidx=4?copied=1

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Do Qualified Protective Orders Maintain the Privacy of PHI Related to the Claim?

Bill Thompson — Fri, 22 Sep 2023 14:33:04 +0000

I advise my clients that the pursuit of a medical malpractice claim involves waiving the privacy and confidentiality of the medical issues related to the claim. I think that is customary advice in the legal community.

Trying to parse out what may remain confidential, whether you have a “qualified protective order” or not, is an interesting but unclear area.

Doe’s lawyer explained that the primary caselaw relied on by the defendants, a 1985 Illinois Supreme Court case, Novak v. Rothnam, was inapplicable because in Novak, a psychiatrist testifying at a criminal trial waived the confidentiality of that information. His client’s information was subject to a qualified protective order under the Health Insurance Portability and Accountability Act of 1996, Paris told the justices.

“There was a qualified protective order in this case that made very clear the limits of waiver,” he said. “Here, we have a qualified protective order that says [the waiver is] for the litigation. … The statements that [the firm made] were made outside of court, outside the litigation.”

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1724261?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2023-09-22&read_main=1&nlsidx=0&nlaidx=0?copied=1

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The Line Between Relevance and Privacy for Plaintiffs Can Be Thin (but still exists in some places)

Bill Thompson — Thu, 11 May 2023 14:23:02 +0000

An Illinois court ruled that a defendant doctor’s legal team could not have access to the plaintiff’s mental health records because they were not relevant to the claims.

“From the limited record, Dr. Rao practices at a clinic that specialized in lung issues. Plaintiff was there presumably seeking treatment for lung issues. Nowhere in the 18-count complaint do the allegations even remotely touch upon any mental health conditions, and we fail to see how Ursitti’s purported depression and anxiety would impact a failure to diagnose lung cancer,” said the opinion, penned by Justice Eileen O’Neill Burke.

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1606489/doc-can-t-use-patient-s-mental-health-records-in-suit?copied=1

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‘Kindness’ Isn’t a Priority in Trial Lawyering and It Should Be

Bill Thompson — Mon, 30 Jan 2023 15:53:49 +0000

When I was coming up as a trial lawyer, I stayed hyper-focused on maintaining a variety of skills during discovery to get at the truth. My Dad used to say, “You need more than one arrow in your quiver.” More often than not, whether in depositions or hearings, combat was the rule of the day. But different people (witnesses, opposing counsel, judges), respond differently to different approaches. Reading the room is a critical part of being an effective advocate.

I’ve seen and made witnesses cry. I have angered and pleased judges. I’ve done favors for and shivved opposing counsel where I thought it was necessary.

The least valued and most underrated quality in the highly emotional world of the trial lawyer is kindness. I’ve been tough on witnesses in deposition who held out on the truth or misrepresented what I knew to be fact. I’ve taken witnesses who thought they were the smartest in the room for long rides until their fanciful arguments took them so far out of sight they couldn’t find their way back home. Over time, I learned that kindness – applied judiciously and not gratuitously – can be just as effective and rewarding. And why not be kind if you can?

“A single act of kindness throws out roots in all directions, and the roots spring up and make new trees.”

Amelia Earhart

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To My Referral Partners: Thank You and a Link to Our Automobile Negligence Page

Bill Thompson — Mon, 01 Aug 2022 14:17:18 +0000

I have personally investigated everything from car explosions and fires to rollover accidents caused by tire blowout. I have been on the scene for traumatic motorcycle and pedestrian death investigations. I have been present for automobile reconstructions that last for days in the sweltering heat of salvage yards.

Here is a link to my firm page detailing how I handle auto cases:

My Experience Handling Serious Auto Injury Cases

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Final Thoughts On Discovery

Bill Thompson — Thu, 26 May 2022 12:53:13 +0000

Once your lawyer receives and organizes discovery, the contents are evaluated closely – in and out of context. The stuff must be turned over, looking at it from every angle. In the movie, My Cousin Vinnie, Joe Pesci’s character teaches this lesson using a playing card. He shows the card to his young client with the card facing forward, describing its appearance as solid as a rectangular brick. Then he turns the card on its side, revealing it to be almost invisibly thin. Every piece of potential evidence must be considered in this way.

“Perception is strong and sight weak. In strategy, it is important to see distant things as if they were close and to take a distanced view of close things.”
Miyamoto Mushasi

I used this quote in a 2017 post called ‘Seeing’ about a case where I used forensic document examination to evaluate paper discovery that you can find by clicking here.

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More On Discovery

Bill Thompson — Wed, 25 May 2022 13:32:24 +0000

In movies, a large truck will pull up to a lawyer’s office with hundreds of document boxes inside. This is a dramatization of a problem your lawyer first learned about in school. Large companies try to take advantage of their size by producing everything they can find in response to any good discovery request. The hope is to bog the lawyer down in a fruitless effort to find the meaning among the meaningless. In effect, they build a haystack in which to hide the needle.

In a Ford rollover case, I remember my Dad traveling to Michigan after he asked Ford to produce seat belt information for the pickup model at issue. In a building outside Detroit used by Ford to house all their litigation discovery responses, he was allowed to search floor after floor. He took a week. You can read more about that amazing case and its crazy ending here.

By the time I was doing automobile product litigation against the major manufacturers on my own, we were in the early days of electronic discovery.

In a product liability case against Big Pharma, I sat in a steamy document production room in Kenner, Louisiana, with other lawyers from across the country categorizing millions of documents for class action litigation.

In the age of electronic record keeping, the software to keep track of discovery gets more and more advanced. But the principle remains the same – the defense will try to overwhelm your lawyer with paper to hide the material information that he needs to win your case. Your lawyer needs experience and technical know-how to cut through the nonsense. The more experience he or she has, the less likely he or she will be to delegate the task or cut corners. Which is what you want.

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Discovery

Bill Thompson — Tue, 24 May 2022 13:45:16 +0000

I can remember when I first started reviewing medical records. They don’t teach that skill in law school and it felt more like looking for needles in a haystack, turning the pages, and trying to decipher the different handwriting, acronyms, and shorthand. Some mysteries never get solved and some were solved with the help of FBI forensic tactics parsing through the paper and ink.

Like anything, a medical record review is something you learn over time. To get really good at it, you need exposure to all manner and types of cases that force you deep down in every part of the chart. Reading lab results is different from reading nursing notes which are different from the radiology reports. It takes years of this kind of exposure to develop the necessary skill.

In legal terms, discovery is “the compulsory disclosure, by a party to an action, of relevant documents referred to by the other party.” But receiving a disclosure is different from knowing and understanding it. Discovering what is in your discovery is an acquired skill.

Here is a link to a case we litigated to the Supreme Court of Florida that solidified patient rights to evidence of medical errors from Hospitals.

Charles v. Baptist: A Discovery Victory for Patient Safety

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Please Provide A List Of All Malpractice Cases Filed Against You

Bill Thompson — Mon, 23 May 2022 12:37:16 +0000

Discovery in a civil case is not limited to trial evidence. In fact, the rules in most jurisdiction allow discovery of anything that is reasonably calculated to lead to the discovery of admissible evidence. In most medical malpractice cases, this means a list of all prior professional negligence claims (no matter the outcome). These prior cases often lead to a goldmine of useful information.

Here is the link to the story about NY prisoners seeking to obtain such a list from the healthcare providers in the jail.

Prisoners Suing Bureau of Prisons for Bad Care Want to Discover List of Cases Against Doctors

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