Know the important medical-legal issues involving doctor/attorney relationships during pretrial and trial proceedings, such as examinations, records, subpoenas, depositions, and compensation

The medical and legal professions are being drawn into steadily increasing association because of the litigation process. Therefore, developing voluntary contracts of good will between each profession to better serve the patient/client is beneficial for both. Since each state has different laws concerning the doctor/attorney relationship, I will discuss the general terms.

The justice system gives the courts and litigants the right to make mandatory attendance of witnesses and parties to the litigation process for the purpose of giving testimony. When the doctor agrees or is compelled to attend court proceedings, the attorney is employing the doctor’s professional time, and, therefore, should compensate the doctor.

Medical examinations. Most states have provisions that allow a party to a suit to be examined, either a physical or even a mental one. The examinations are requested by counsel or the courts. This is different than an independent medical examination, as this is a compulsory examination ordered by the courts, and it is up to the attorney to instruct the party as to the location and time of the examination.

The attorney requesting the examination has the responsibility of paying the bill. In addition, state laws provide insurance carriers with PIP coverage the right to an independent medical examination. The cost of this is entirely the responsibility of the insurance company. If requested by the attorney and ordered by the court, the scope of the examination may be limited by what the parties agree to or by court order and should be in writing.

Medical records. Often the doctor will receive a request for medical records by an attorney representing your patient. Generally, this request is not for a prepared written report, but to see the records in preparation for possible litigation.

Most states require confidentiality in the release of medical records and should only be released to the patient, legal representative, or other health care provider involved in the case. All other releases of medical records must either have a written authorization by the patient, subpoena, or court order. States have statutory requirements regarding furnishing copies of records and authorization by the patient.

The attorney representing the patient should be as specific as possible about the medical records he or she is requesting. Be careful not to send records that are considered “super-confidential,” as these records may only be released by a court order and signed by the judge. The release of super-confidential records also fall under the new federal Health Insurance Portability and Accountability Act (HIPAA).

Doctors can also charge for the expense of copying the records requested. The fee usually cannot exceed what the county clerk office charges for copies and should not be contingent upon payment of a bill.

Record requests from an attorney should be sent within a reasonable time by the doctor. The time is set forth in each state statue and usually falls between 10–20 days.

With respect to written, prepared reports requested by the attorney, the attorney should provide the doctor with a signed authorization from the patient or a copy of a court order. No authorization is required when the doctor is retained by an attorney or insurance company to conduct a compulsory medical examination, as the normal doctor/patient relationship is not present.

Subpoenas and depositions. A deposition is an official proceeding, authorized by state statue requiring persons to give testimony, either in court or outside of the courts. The person may be required to produce medical records at the proceeding.

A subpoena is a legal document issued under the power of the court and prepared by the attorney, requiring the doctor to comply. States recognize that relationships between the doctor and patient are privileged. A doctor may discuss information about patients if they waive the privilege, or if the doctor is giving sworn testimony, through a subpoena regarding the injury of the patient.

The time and place for testimony should be set forth by the attorney and doctor. Testimony is usually taken at the doctor’s office as a courtesy. A doctor may be required to appear under subpoena within a specific time and place within the county of the doctor’s residence or office. Some state laws can compel attendance up to 100 miles of the residence or office. If the subpoena is truly inconvenient, the doctor may either call the attorney who issued the subpoena and discuss alternatives, or notify legal counsel for party to set an alternative time or have the subpoena nullified by the attorney. It is necessary to follow these procedures or you may not be excused.

A subpoena may require the doctor to supply records at the proceedings. As the doctor is the custodian of the records requested, he has the right to object to the production of the records prior to the proceedings, such as depositions. A subpoena will specify Duces Tecum, which means appearance with records. You must bring the originals to the proceedings, unless specified by the attorney that copies are sufficient. At times, the doctor will receive an intent to serve a subpoena. This is usually done sometime before the subpoena is actually issued—10–20 days is customary. Your records should not be released until a formal signed subpoena is received. View all requests carefully before you release records.

There is a difference in the type of testimony you can give in a deposition or trial. A doctor can be a witness to the facts. Any person who has knowledge of the facts or evidence may testify to facts. A doctor who has knowledge of the patient, examination, or treatment may be called to testify to those facts.

A doctor may also testify as an expert witness. This involves doctors who are not party to the legal action and testify as to their expert opinion. Expert is defined as someone with special knowledge, training, and qualifications. You are entitled to reasonable compensation for your testimony. Keep in mind that attorneys want the doctor to testify in simple language that a lay person can understand. You may also have your qualifications and other areas challenged by opposing counsel to disqualify your testimony.

Doctor/attorney relationship prior to trial. If you have been retained by an attorney to testify, do not consult with the opposing attorney, unless authorized by the attorney who hired you. Any information obtained from the attorney is privileged under the attorney-client privilege or as part of the attorney’s work. Meet with the attorney who hired you to testify prior to trial or any legal proceeding to discuss any medical-legal issues about the case. The attorney and doctor should discuss all medical information involved in the case. If the attorney must cancel, the doctor should be given at least 24-hour notice. If the proceedings are cancelled in a shorter time, the doctor is ethically entitled to charge a reasonable fee for the time.

Doctors at trial. Many times, due to the heavy trial schedules, lawyers will not know the exact start date of the trial. Doctors will receive subpoenas for trial that often does not specify a certain time for appearance, but will give you the date. Most times under these circumstances the doctor is placed on stand-by. During this time the doctor may be called to testify. The attorney should keep the doctor informed about the progress of the trial so the doctor can have some notice.

If the doctor receives a subpoena and will be unavailable he should notify the attorney to reschedule the trial. The attorney should notify the doctor in advance of the issuance of the subpoena and make arrangements as to the time and place the doctor will be called to testify.

Doctor compensation. Due to the possibility of antitrust violations, this code does not set a specific fee schedule for professional charges related to litigation. Most doctors charge for their time on an hourly basis. It is reasonable to charge in intervals, usually 15-minute timeframes. Many times, the attorney advances the doctor the fee or a portion of the fee for the testimony, but the doctor should keep in mind that the patient/client usually bears the burden of payment. Sometimes, the attorney will be late or cancel the proceeding. This may also happen to the doctor, who should also give advance notice if possible.

If the doctor charges by the hour in 15-minute intervals and is late, the fee should be reduced accordingly. If the attorney requests the appearance of the doctor, then the payment for such services should come from the attorney. If not, then the attorney should notify the doctor prior to requesting the service of the doctor.

Payment for the doctor to testify should be paid promptly by the attorney, and payment should not be contingent on the completion of the case. This payment may be requested by the doctor in advance of the service. This is different from treatment, where the patient is ultimately responsible for payment. The best way to make sure you get paid is to have a written agreement with the attorney in advance for any legal proceeding.

If a dispute arises you can seek dispute resolution through your local bar, which usually has a medical-legal committee. This type of resolution is not binding; or, if both parties agree, is through arbitration, which is final and binding.

Kenneth S. Ross, DC, JD, MBA, LHRM, is a retired criminal law enforcement officer. He practices chiropractic in Orlando, Fla, and is a member of the Orange County Bar Association. Ross is a faculty member of Texas Chiropractic College, teaches tort law, and conducts a national expert witness certification course. He can be reached at 407-682-6041, or via his website: www. medicallawjd.com.

The information in this article is intended for informational purposes only and does not constitute any legal advice whatsoever. Consult an attorney in your state to determine your state laws governing such information.