Because of the complex nature of the majority of medical malpractice cases, the discovery process is extremely important. As a defense attorney, the discovery requests received from plaintiffs are usually extensive in nature and include medical records, statements, incident reports, audit trails, videos, personnel files and different policies and procedures of the hospitals. Therefore, in order to properly defend these cases, it is imperative to know and understand which documents are protected and not discoverable. The following discussion addresses different items that I consider when responding to a plaintiff’s request for production of documents in Pennsylvania medical malpractice cases.
The first question a defense attorney must ask after receiving a plaintiff’s discovery request is whether the material is relevant. Rule 401 of the Pennsylvania Rules of Evidence states that evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Particularly in medical malpractice cases, as it pertains to the discovery of personnel files, a plaintiff must initially show the relationship between the care the employee provided and a specific negligence allegation. Next, the plaintiff must explain how any information the plaintiff seeks from the employee’s personnel file may assist the plaintiff in establishing a claim, as in Shedlock v. UPMC Presbyterian, 69 Pa. D. & C.4th 1, 9 (Pa. County Ct. 2004). The court must then decide whether the plaintiff’s request causes an unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.
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