Medical Malpractice Law: Eliminate Unnecessary Delays In Discovery
In Dick v. Atlantic City Medical Center, 414 A.2d 995 (N.J. Super. Ct., Law Div., 1980), the court held that while the New Jersey rule was based on the amended FRCP 26(d), the plaintiff in a medical malpractice case should have priority in deposing the medical defendants because of the defendants' possession of information otherwise unavailable to the plaintiff in developing its case:
'"Obviously, reason and logic dictate that in most cases it is helpful to adhere to an orderly progression of events, such as interrogatories followed by depositions. This is not mandated, however, and may be varied as counsel deem advisable.
It is significant that defendant in his brief cites no authority for his position but instead tenders an argument claiming it is 'patently unfair' to permit plaintiff to discover what defendant did before plaintiff has revealed his own expert's position. It is not patently unfair at all. To the contrary, it may well be the only way plaintiff can insure that all the facts come to light. Medical malpractice cases are not noted for the ease in which a case against a doctor or hospital can be developed.
A witness either on deposition or at trial has but one obligation to speak the truth. If the truth here exculpates defendant doctor, all well and good. He will prevail. If the truth turns out to be that he committed malpractice, so be it. The truth is always the truth, and telling the truth never hurt anyone except insofar as he ought to be hurt. The contrary view turns an inquiry into truth and justice into a poker game . . ."
The courts should abstain from establishing priority in civil cases and either provide that the party first noticing a deposition is entitled to proceed first; or require that a party claiming priority, despite an earlier noticed deposition by another party, be required to bring forth clear proof that under such factors as in Keller, supra, granting priority is necessary to avoid substantial prejudice or manifest injustice.
Likewise requiring the plaintiff to disclose experts prior to the defendant results in a substantial delay in the discovery process and eventual trial. The Practice Book does not mandate sequential disclosure. Instead this practice has become a matter of custom in many state and federal court scheduling orders. A more efficient approach is to require simultaneous disclosure of experts with the opportunity for each side to simultaneously disclose any rebuttal experts. This approach avoids the lengthy delays attendant with the common defense arguments that defendant's experts cannot be disclosed until after the plaintiff's experts and all fact witnesses have been deposed. This approach has been adopted by the state of California, by the state of Arizona in medical malpractice cases, and by the state of Illinois in an ongoing pilot project.
This approach also promotes a more honest assessment of the issues without an expert modifying her opinions simply to disagree with an opposing expert. A trial is a search for the truth. It should not be cast as a game, like tennis. The proper role of a defense expert, as any expert, should be an honest assessment of the issues, not to take a position simply because it coincides with a party's theory or simply to contradict an opposing expert's theory.
With many in the litigation bar believing that current discovery mechanisms do not work well, that discovery is often abused and that discovery is the primary reason for delay in civil cases reaching trial, new and refreshing approaches to civil discovery are needed. It is time for the civil litigation bar and the judiciary to abandon notions of discovery that are misguided, create delay and impede the search for the truth. We all will be better served.•