Litigation and the Patient File: How to Handle the Patients Attorney and Subpoenas

By Richard H. Adler, Attorney at Law

Fair resolution of personal injury cases headed toward mediation, deposition, arbitration, or trial invariably depends upon the evidence provided by the treating health care professional. The plaintiff/patient’s lawyer knows that your testimony regarding your patient’s case history, examination findings, diagnosis, treatment, causation, and prognosis will be crucial. The attorney will likely require your oral testimony (as well as preparation) at a deposition or at the trial or arbitration hearing. The health care provider should know his/her rights with regard to participation in these proceedings and be prepared to enforce them.

An attorney handling a personal injury case is given legal authority to issue subpoenas in the name of the court to compel a health care provider’s attendance, testimony, or production of documents at either a deposition, arbitration, or trial. There is no statute or court rule which requires plaintiff or defense counsel to pay a reasonable fee for the time of the treating provider to appear and testify, unless you have been identified as an expert witness. However, the attorney issuing the subpoena requiring your attendance must pay a reasonable fee for your time. Normally, the plaintiff’s counsel will be solicitous of the provider’s interests, as long as the provider’s charge for preparation and testimony is reasonable and commensurate with the nature and quality of work performed and services rendered (since this cost is ultimately paid for by the patient). Despite these laws, many health care providers discover that the patient’s attorney is not prepared to pay in advance for the provider’s time or assure that payment will be made within a reasonable time. What can you do? The provider’s rights and duties depend upon the circumstances.

THE NON-SUBPOENA SITUATION: Prior to any formal testimony at a deposition, arbitration, or trial, the patient/plaintiff’s lawyer will usually want to meet privately with you and discuss the issues relating to the patient/plaintiff’s personal injury case. You may request advance payment for your time. Alternatively, require written assurance from the attorney that he/she will guarantee payment of your consultation fees. You should specify your hourly rate for preparation and consultation time. Make it clear to the attorney that there is a need for agreed-upon arrangements before time will be scheduled or expended by you.

If an attorney declines to either pay in advance or assure payment in a reasonable time frame, simply refuse to meet or communicate with the attorney about the patient except as directed by subpoena (which means that the other party’s attorney will be present). Most plaintiff lawyers will not want your first comments about the case and patient to be made in the presence of opposing counsel. You may also consider advising your patient of the situation, particularly if the attorney refuses to follow customary, professional protocol. The patient should know how the attorney is handling this portion of the personal injury case.

THE SUBPOENA SITUATION: If your patient’s case does not settle before a lawsuit is filed with the court, you may, at a later point in time, be served with a subpoena to testify either at a deposition, arbitration, or trial. A properly prepared and served subpoena compels you to testify. A subpoena may also serve as a formal confirmation of agreement to testify, previously arranged between you and the patient’s attorney.

Proper service of a subpoena is generally conducted by any person over 18 years of age by “exhibiting and reading it to the witness, or by giving him a copy thereof, or by leaving such copy at the place of his abode.” Civil Rule 45(c). Sending a subpoena through the mail is not proper service.

You can be compelled to testify in the county of your residence or business, or within 20 miles of the place of trial or 40 miles of the place of deposition. Upon your demand, the subpoena must be accompanied by the statutory witness fees, mileage, and meal allowance (if any).

A trial subpoena will normally direct you to appear in a particular courtroom (often that of the presiding or assignment judge). You are not required to appear at other times or on other days unless you are directed by a judge or are served with an additional subpoena. In other words, the attorney does not have a general right to keep you “on call” after the time designated for your appearance in the original subpoena. If the attorney is not communicating with you about these matters, you should, on your first appearance in compliance with the subpoena, ask to address the judge to explain your circumstances. Most judges are sympathetic and indulgent about minimizing the intrusion into your time and practice.

At Adler Giersch, P.S., we are aware of and sensitive to the many time demands placed on your professional day. When we represent one of your patients, we will exercise professional courtesy, communicate clearly, ensure your services are reimbursed promptly, and remain accessible to assist you, your staff, and your patient in any way we can.

If you or your patients have questions concerning a personal injury case, simply give us a call.

Very truly yours,
ADLER GIERSCH, P.S.

Richard H. Adler
Attorney at Law

1 The Seattle King County Bar Association, in cooperation with the Medical-Legal Committee of the King County Medical Society, prepared a pamphlet entitled “Interprofessional Handbook,” in an attempt to guide professional interaction and foster mutual cooperation between attorneys and health care professionals. The guidelines for attorneys include:

a. When an attorney needs to meet with or schedule the deposition or court appearance of a physician, the attorney should provide the physician with reasonable notice.

b. An attorney should work with the physician’s office staff in scheduling conferences, depositions, or court appearances to minimize inconvenience and disruption of the physician’s practice. For deposition scheduling, the attorney should also cooperate with opposing counsel.

c. An attorney should be prompt for scheduled conferences or depositions with a treating physician, recognizing the demand on the physician’s time.

d. An attorney requesting the physician’s appearance at a conference, deposition, or trial is responsible for doing all that is legally and ethically possible to ensure that the physician receives appropriate, reasonable compensation for such activities.

e. An attorney requesting the conference, deposition, or court appearance should clarify what, if any, preparation the attorney expects the physician to do, as well as the fee arrangements for such preparation time.

f. An attorney should promptly and diligently notify a physician of any required scheduling changes of conferences, deposition, court appearances, or the continuance or the settlement of cases so that the physician may productively schedule and use any time previously set aside.