Discovery is the process of finding (discovering) the relevant facts
that must be presented to the court. Discovery by set rules is a modern
innovation designed to further justice by giving both litigants access to the
facts in the case. Discovery is termed a procedural rather than a substantive
matter (an ironic use of language, since rules that affect the procedure of the
law often have more profound effects than rules that affect the substance of
the law). In most civil litigation, and especially in medical malpractice
litigation, the majority of the time between the filing of the plaintiff's
complaint and the point at which the case is ready for trial is taken up with
discovery proceedings. These proceedings consume substantial resources and are
quite expensive. A major argument for alternatives to litigation for resolving
disputes is avoidance of the cost of discovery.
Understanding discovery will help physicians understand the legal role of
medical records. Physicians are constantly told to keep good records, but this
admonition has little force unless physicians know what constitutes a good
record.
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