Under Texas law, the bounds of discovery are broad. That’s why some medical malpractice plaintiffs feel surprised at some of the questions asked during a lawsuit in written discovery or when giving a deposition.
A defendant is allowed to ask any question of a plaintiff that is relevant to the lawsuit or reasonably calculated to lead to the discovery of admissible evidence. It’s common for expansive questions to be asked during discovery in several areas.
Past medical history
Many defense lawyers cast a broad net to try to find any nugget in a plaintiff’s past medical history that they can use as an excuse to explain away the plaintiff’s injuries or impairments that are at issue in the lawsuit. In other words, they strategically try to deflect blame away from the medical negligence and toward some pre-existing medical condition.
Have you ever heard of the expression “making a mountain out of a mole hill?” That’s the idea behind this approach.
When preparing Painter Law Firm clients to give their depositions, I often remark that they shouldn’t be surprised if they get question about that time that they stubbed their toe in second grade. In my view, the best way for plaintiffs to handle these questions is to not let them get under their skin. Answer the questions factually and comfortably.
Past mental health history
When a plaintiff makes a claim for mental anguish, it’s likely that it opens the door for discovery on past mental health treatment. Think about like this. If a plaintiff contends that the negligence caused mental anguish, then that person’s mental health baseline, as evidenced from any prior counseling, psychological, or psychiatric care or therapy, becomes relevant.
Some clients who have seen mental health professionals in the past prefer to keep that information confidential. It’s possible to do that by choosing not to seek damages for mental anguish.
If a medical malpractice lawsuit includes a claim for past or future loss of earning capacity (lost wages), then the defendants will certainly serve discovery for production of tax returns. We typically agreed to produce five years’ worth of tax returns because that establishes a reasonable baseline to determine the true amount of the lost wages claim.
Occasionally, we’ve had clients who were self-employed and had not filed tax returns one or more years. There can be a variety of reasons for this. We always recommend that plaintiffs have tax returns filed for all relevant time periods before filing a lawsuit.
Social and other activities
One of the best ways to determine the extent of the plaintiff’s injury for medical malpractice is by comparison of before and after. Victims of medical malpractice should expect questions during a lawsuit about the type of social and in leisure activities that they enjoyed in the past but now are unable to do.
Questions often include topics such as church or religious activities, social clubs, travel and dining out, and sports or other activities.
In summation, our adversarial system of civil justice allows both sides to conduct significant, broad discovery before trial. Plaintiffs should expect to be required to answer a lot of questions, even those of a personal nature. It’s just part of the process.
If you’ve been seriously injured because of poor health care in Texas, then contact a top-rated, skilled Houston, Texas medical malpractice lawyer for help in evaluating your potential case.