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Discoverable Information

As noted previously, the law holds that documents made in preparation for litigation, under a general plan directed by an attorney, will not be discoverable. This means that the opposing party is not entitled to see the documents or to have them admitted in evidence. This is to facilitate the attorney's investigation of the case and to encourage a frank discussion of the incident. The tension arises because attorneys want to protect every document their client develops. This leads the client to assume that secrecy is the best policy. seeing only this side of the problem, the administrator does not understand why any documents should be given to the plaintiff's attorney. A broader view of the problem is necessary to see the pitfalls in this approach.

The administrator usually does not realize that the plaintiff (the person suing the hospital) also has information that the plaintiff's attorney wants to protect. Consider a case where a patient sues the hospital over injuries related to falling out of bed. The incident report contains the information that the bed rails were not raised, a possibly negligent omission. the patient claims a severe back injury and alleges total disability. The administrator does not appreciate is that the plaintiff may be trying to conceal a history of back problems that would mitigate the alleged damages of falling from the bed. Fifty years ago it was very easy for both sides to prevent the discovery of their secrets until the trial. The result was trials that were full of surprises and that tended not to reach just results. As a result, a public policy decision was made that it would be better for the ends of justice if parties in lawsuits were able to discover relevant facts before trial. The rules governing pretrial discovery were changed so that the trial of the modern lawsuit does not depend upon the element of surprise. Thus, in our example, the administrator may not be able to conceal the fact that the bed rails were not raised, but also the plaintiff cannot conceal the previous back problems.


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