THE OKLAHOMA BAR JOURNAL 40 | SEPTEMBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. IT’S OFFICIAL. YOU FILED A MEDICAL MALPRACTICE LAWSUIT and are ready to take on the world. You walk out of the courthouse with your fist triumphantly pumped into the air, just like John Bender in the iconic scene where he walks off the football field during the ending of The Breakfast Club. Unlike in The Breakfast Club, this is not the end. In fact, it is the beginning of a long journey through complex discovery in a medical malpractice lawsuit. In order to be prepared for the daunting journey that is discovery in such a complex case, the attorney needs to be familiar with documents and records to support the theory of the case and, on the other hand, objections or hurdles that can stop the discovery of important records or documents. This article is not meant to be an in-depth discussion of discovery issues in a medical malpractice lawsuit; it is, instead, a 10,000-foot view of general discovery conducted in medical malpractice lawsuits. For a more exhaustive summary of discovery in medical malpractice lawsuits, a CLE program would be an excellent resource. It is also helpful to speak with other attorneys who have litigated cases with similar medical malpractice issues because they may be able to assist with discovery requests or discovery responses. In a medical malpractice case, a party must show 1) a duty owed by the defendant health care provider, 2) a failure to perform that duty and 3) that a plaintiff’s injuries were caused by the defendant’s failure.1 In order to establish a prima facie case of medical negligence, a plaintiff ordinarily must have medical expert testimony.2 A medical expert must opine that a health care worker was negligent and that such negligence caused the patient’s injury.3 For a medical expert to either support or defend a medical negligence case, the expert needs certain documents to determine what occurred during the care and treatment at issue. The key documents to obtain during discovery in a medical malpractice lawsuit are: medical records, policies and procedures, credentialing files and incident/investigation reports (incident reports). Together, these documents can help tell the story of what occurred. Medical records are the foundation of a medical malpractice action and describe what occurred during the care and treatment at issue. Put bluntly, without medical records, one cannot prosecute or defend a medical malpractice case. The majority of medical records are currently kept electronically, and there are many nuances contained within the electronic medical record system. One could write a thesis on electronic medical Torts Diagnosing Discovery: A Primer on Discovery in Medical Malpractice Cases By S. Shea Bracken
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