Subpoena of Medical Records to Trial or Deposition: Rule 45

Copyright ) 2000 Robert P. Holmes All rights reserved.

---

The Notice of Deposition/Subpoena Method of Record Discovery Can Be Mutually Beneficial

During my time representing insurance companies, I often noticed and subpoenaed medical records custodians to depositions with instructions to produce the entire medical file. Usually, the plaintiff's attorney did not object and I would agree to provide the plaintiff's attorney with a copy of all records obtained at the deposition. I would use this procedure when a review of the medical records produced by a standard request for production referred to records which were conspicuously absent from the plaintiff's production package. Any number of other things could prompt a hunt for a direct review of medical records. For instance, if an insurance "index" report showed that the plaintiff had made an earlier claim for personal injuries which was not mentioned in any records produced in regular discovery, then it was pretty obvious that the defense had to discover more records. In that situation, the plaintiff's attorney (who may have been misled by the client) would often have no idea why the defense was going to so much trouble.

If the plaintiff's attorney assured me that he had made a full request and forwarded all records received, then it was apparent that I would have to personally review the medical file because the doctor's office had, for whatever reason, sent only portions of his file to the plaintiff's attorney.

The Plaintiff's Attorney May Benefit More Than The Defense

From a strategic standpoint, the plaintiff's attorney in those situations probably had little to lose by cooperating with the notice and subpoena. If the plaintiff's attorney filed a motion for protective order or motion to quash, what would be the chances for success in a personal injury case where medical records are relevant and material? Wouldn't a judge find implicit waiver of privilege, barring extenuating circumstances?

Furthermore, assume the plaintiff's attorney successfully prevented the deposition record production. Wouldn't that unnecessarily prolong the day of reckoning? Those same records could be subpoenaed to trial and, with the court's permission, opened by the defense attorney prior to cross-examination or the defense evidence. If the records contained bombshells, then isn't the plaintiff better off dealing with those well in advance of trial?

Wouldn't Crist Still Control Records Produced "In Lieu" of Deposition?

Production in lieu of appearance at a deposition is a sensitive issue since Rule 45 puts the court in control of opening, inspecting and copying such records. It would seem that if there is no deposition and records are produced in lieu of deposition then obtaining and reviewing the records without the court's permission might run afoul of Crist.

To me the bottom line is that the defense needs (or thinks it needs) the records, ultimately the defense is going to get the records (at trial, if not sooner) and the records might help the plaintiff's trial preparation if obtained far enough in advance.

Avoid This Living Nightmare

I always found the following fact situation very damaging to plaintiff's case:

1. Defendant asks plaintiff to produce all records from Dr. X in discovery.

2. Plaintiff sends 20 pages of Dr. X records in response to request.

3. Defendant sends Request for Supplementation of Discovery 60 days before trial.

4. Defendant subpoenas Dr. X's entire file to trial.

5. Plaintiff introduces "all" 20 pages of Dr. X file into evidence at trial.

6. Defendant asks Court to permit opening the Dr. X file which was subpoenaed to trial.

7. Defendant finds additional 10 pages of Dr. X records, some of which contain evidence of (you pick it, preexisting injury, subsequent injury, whatever)

8. In cross or closing argument or both, defense makes a huge issue out of plaintiff's failure to provide entire document set, despite defendant's repeated requests pursuant to the Rules. Plaintiff's attorney feels blindsided by the client and by the doctor's office.

Practically, as a plaintiff's attorney, I would try to agree to the deposition method with the understanding that I would promptly receive a copy of all documents obtained. I would anticipate objecting if I believed that the records contained some truly undiscoverable information.

When Fighting Against The Discovery of "Unrelated" Records, Permanency Is A Threshold Issue

If the plaintiff claims any kind of permanent sequelae, then the defense can argue that all medical history, both prior and subsequent, is relevant because the accident injury can only be judged in the context of its effects on the entire person.

If the plaintiff had only temporary disability and no permanent, then the plaintiff's argument against the discovery of clearly unrelated records is much stronger.

-- Anonymous, February 07, 2000