Prepared by the LSMS
Medical/Legal Interprofessional Committee
Dr. Herbert W. Marks, Physician Chairman

This paper is designed to assist Louisiana physicians who receive subpoenas for testimony and/or records in understanding their rights and obligations that evolve upon receiving a properly issued and served subpoena.

The Louisiana State Medical Society’s Medical/Legal Interprofessional Committee has been asked to review hundreds of disputes between physicians and lawyers arising out of conflicts created by subpoenas. Most of these conflicts could have been avoided had the physician and the attorney simply communicated with each other. It is strongly recommended that the attorney issuing the subpoena communicate in advance with the physician about the time, place, and circumstances for which the physician is being subpoenaed. Similarly, the physician, upon receipt of the subpoena, should endeavor to communicate directly with the attorney regarding the date, time, and circumstances in which his testimony is commanded. Simply stated, a simple phone call or letter will resolve most of the conflicts that arise out of the issuance of subpoenas.

General Considerations and Requirements
A subpoena is a document commanding a witness to appear at a certain place and time. The technical and descriptive term for the ordinary subpoena is "subpoena ad testificandum." A "subpoena duces tecum" is a process by which a person is commanded to produce some document or thing pertinent to the issues of a pending controversy, at a certain place and time. La.C.C.P. Art. 1351. A subpoena may be issued for both purposes as well.

The forms used for subpoenaing witnesses vary from parish to parish, but all are issued under the seal of court, and must state the name of the court, the title of the action, and command the attendance of the witness at a specified time and place.

There are provisions in the rules on subpoenas that govern how much lay witnesses are to be paid for travel, per diem, and mileage. L.C.C.P. 1352 and LSA-R.S. 13:3661. These rules will usually not govern physicians who are called upon to give expert opinion testimony and are mentioned here not only for completeness, but also because some judges will use these lay rules as yardsticks when setting fees, etc.

Generally speaking, the party calling the witness is responsible for seeing to it that the witness is paid. If the court calls the witness, the fees will be set by the court and assessed to a party or both of them. While there are court mechanisms to assure payment, the prudent physician will use the forms and letters contained herein to assure prompt payment from the party calling him. The Interprofessional Code can also give direction in this regard.

Another vexing issue is how soon after being issued can a subpoena command attendance? The answer varies according to the local rules of the parish. For example, in Civil District Court for the Parish of Orleans it is 10 days, in Baton Rouge it is 14 days, so time varies. The subpoenaed physician should always call the Clerk of Court who issued the subpoena to determine if the subpoena has been correctly issued.

When the Trial is Continued or Cancelled
When a subpoena that has been personally served is ordered reissued because of a continuance or cancellation of the trial or hearing, the subpoenaing party may serve the subpoena by mailing a copy of the original subpoena, together with a notice of the new date and time for attendance, and the mailing shall be by registered or certified mail, return receipt requested, and must be mailed not less than 35 days prior to the date the witness is subpoenaed to appear. La.C.C.P. Art.1355.1.

Physicians living more than 10 miles from the courthouse shall not be compelled to appear in civil cases if, in their opinion, the life of any of their patients might be endangered by their attendance, but such a physician must immediately forward to the court a sworn certificate stating the facts which in his opinion render his attendance impossible under the circumstances. La.R.S. 13:3667.

Expert Witnesses
Witnesses called to testify to an opinion founded on a special study or experience in any branch of science, or to make scientific or professional examinations, are called expert witnesses. Expert witnesses receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required. La. R.S. 13:3666. Expert witnesses retained by a party may, of course, agree upon a fee separate and apart from that fixed by the court.1 

A subpoena duces tecum may be issued to obtain documents or things and not require the appearance of a witness. This situation usually arises in what is commonly called "records only" depositions in which the medical records of a patient are subpoenaed but no testimony is required of the physician or staff, so long as the documents are produced in compliance with the subpoena, and the subpoena is issued in compliance with La.R.S. 13:3715.1. When a physician receives a subpoena for "records only," his office staff can usually efficiently satisfy the subpoena without the necessity for any appearance. Again, communication with the attorney’s office is recommended.

Unavailability of Physician
Whenever a physician receives a civil subpoena for appearance as a witness on a date and time that conflicts with a long-standing personal or professional commitment that would result in substantial personal or financial hardship, the physician should, as soon as possible, contact the attorney issuing the subpoena and explain the circumstances. In most cases, the attorney will agree to schedule a perpetuation deposition in lieu of a live appearance. Absent such an agreement, the physician’s only recourse is to inform the court of the circumstances and seek relief from the subpoena.

Subpoenas for Medical Records
Medical records may only be subpoenaed as allowed by statute. The relevant portions of the statute are below:

13:3715.1. Subpoena duces tecum to a health care provider for patient records; reimbursement for records produced.

A. As used in this section, the following terms shall have the respective meanings ascribed thereto:

(1) Patient "records" shall not be deemed to include x-rays, electrocardiograms, and like graphic matter unless specifically referred to in the subpoena, summons, or court order.
(2) "Health care provider" shall mean a person, partnership, corporation, facility, or institution defined in R.S. 40:1299.41(A)(1).

B. The exclusive method by which medical, hospital, or other records relating to a person’s medical treatment, history, or condition may be obtained or disclosed by a health care provider, shall be pursuant to and in accordance with the provisions of R.S. 40:1299.96 or the Code of Evidence Article 510, or a lawful subpoena or court order obtained in the following manner:

(1) A health care provider shall disclose records of a patient who is a party to the litigation pursuant to a subpoena issued in that litigation, whether for purposes of deposition or for trial and whether issued in a civil, criminal, worker’s compensation, or other proceeding, but only if: the health care provider has been furnished, by the party or the party’s attorney at whose request the subpoena has been issued with an affidavit that attests to the fact that such subpoena is for the records of a party to the litigation and that a copy of the subpoena has been authorized by the court and has been mailed, by registered or certified mail, to the patient whose records are sought, or, if represented, to his counsel of record, at least seven days prior to the issuance of the subpoena; and the subpoena is served upon the health care provider at least seven days prior to the date on which the records are to be disclosed, and the health care provider has not received a copy of the petition or motion indicating that the patient has taken legal action to restrain the release of the records. If the requesting party is the patient or, if represented, the attorney for the patient, the affidavit shall state that the patient authorizes the release of the records pursuant to the subpoena. (Emphasis added.)

(2) Any attorney requesting medical records of a patient who is not a party to the litigation in which the records are being sought may obtain the records by written authorization of the patient whose records are being sought, or if no such authorization is given, by court order as provided in Paragraph (5) hereof. (Emphasis added.)

(3) Any attorney requesting medical records of a patient who is deceased may obtain the records by subpoena, as provided in Paragraph 1 hereof, by written authorization of the person authorized under Louisiana Civil Code Article 2315.1 or the executor or administrator of the deceased’s estate, or, by court order, as provided in Paragraph (5) hereof. (Emphasis added.)

(4) Any subpoena for medical records issued by the Office of Worker’s Compensation Administration in the Department of Labor, or by a hearing officer or agent employed by such office, shall for all purposes be considered a subpoena within the meaning of this section.

(5) A court shall issue an order for the production and disclosure of a patient’s records, regardless of whether the patient is a party to the litigation, only: after a contradictory hearing with the patient; or, if represented, with his counsel of record; or, if deceased, with those persons identified in Paragraph (3) hereof; and after a finding by the court that the release of the requested information is proper; or with consent of the patient.

C. No health care provider, employee, or agent thereof shall be held civilly or criminally liable for disclosure of the records of a patient pursuant to the procedure set forth in this section, R.S. 40:1299.96, or Code of Evidence Art. 510, provided that the health care provider has not received a copy of the petition or motion indicating that legal action has been taken to restrain the release of the records.

D. Unless the subpoena, or court order otherwise specifies, it shall be sufficient compliance therewith if the health care provider delivers by registered or certified mail, at least 48 hours prior to the date upon which production is due, or delivers by hand on the date on which production is due a true and correct copy of all records described in such subpoena. However, no subpoena or court order shall require the production of original, nonreproducible materials and records unless accompanied by a court order or stipulation of the parties and the health care provider which specifies the person who will be responsible for the care of the items to be produced, the date and manner of the return to the provider of the items to be produced, and that the items to be produced are not to be destroyed or subject to destructive testing. Any subpoena duces tecum not timely served shall be quashed by the trial court without the necessity of an appearance by the hospital, health care facility or medical physician.

E. The records shall be accompanied by the certificate of the health care provider or other qualified witness, stating in substance each of the following:

(1) That the copy is a true copy of all records described in the subpoena.

(2) That the records were prepared by the health care provider in the ordinary course of the business of the health care provider at or near the time of the act, condition, or event.

F. If the health care provider has none of the records described, or only part thereof, the health care provider shall so state in the certificate, and deliver the certificate and such records as are available.

G. The health care provider shall be reimbursed by the person causing the issuance of the subpoena, summons, or court order in accordance with the provisions of R.S. 40:1299.96.2 

H. Notwithstanding any other provision of law to the contrary, no health care provider, as defined in R.S. 40:1299.96, shall be required to grant access to or copying of photographs, or both, of any minor or part of a minor’s body who is alleged to be the victim of child sexual abuse unless a court of competent jurisdiction, after a contradictory hearing at which the health care provider may, but need not be present, orders the health care provider to grant access to or copying of said photographs to the moving party’s counsel of record or experts qualified in the medical diagnosis of child sexual abuse, or to both. The court’s order granting the access to or copying of said photographs shall be limited to the movant’s counsel of record or the experts qualified in the medical diagnosis of child sexual abuse, or both; shall be limited solely to use of said photographs for the purposes of trial preparation; shall prohibit further copying, reproduction, or dissemination of said photographs; and shall prohibit counsel of record or the experts qualified in the medical diagnosis of child sexual abuse from allowing any other person access to said photographs without court order and for good cause shown.

• • •

The local custom and practice is to not require the physician’s attendance at a medical records deposition to produce records. Attendance can, however, be required and the subpoena and accompanying notice should be carefully reviewed to see if an appearance is required.

What Happens When You Disobey a Subpoena
As described above, a subpoena is an order from the court mandating attendance and/or that documents be brought to a certain place at a certain time. A failure to comply with a subpoena for deposition or request to produce documents initiates a series of steps by the lawyer issuing the subpoena that may, ultimately, result in sanctions and, in certain extreme cases, contempt of court and even detainment in prison in egregious violations.

The court may order the recalcitrant witness to pay court costs and attorneys’ fees for failure to appear. Louisiana Code of Civil Procedure Article 1469 and 1970.

If the offending party does not comply after the court has ordered the appearance, then a motion is filed for contempt. This is governed by Louisiana Code of Civil Procedure Article 1470. A physician can be ordered to appear and explain to the court why he is in contempt of the court’s order.

Conclusion
Again, when served with a subpoena, be sure to call the issuing attorney’s office and find out what the subpoena is for, confirm where you are ordered to be, and when you are supposed to be there. If no arrangement for a professional fee has been made, write a letter to the issuing attorney stating your fees and request the letter be signed and returned.

Any questions relative to a subpoena that are unanswered by the issuing lawyer, may be answered by contacting the court that issued the subpoena and/or the opposing counsel in the case who also serves as an officer of the court and should respond professionally to any questions about the subpoena.

Also, the Louisiana State Medical Society and attorneys on staff with malpractice insurance carriers have general counsel who should be willing and able to answer any brief questions regarding subpoenas.

When these simple and professional steps are followed, deposition and trial testimony may proceed as conveniently as possible given the usual stressful circumstances which give rise to such testimony.

NOTES
* Individuals may wish to define this term.

 1 By using a letter similar to the sample physician letter attached to this paper, the physician can prearrange payment of fees for expert witness testimony.

 2 Under LSA-R.S. 40:1299.96, the physician is entitled to a reasonable copying charge not to exceed $1/page for the first 25 pages, 50¢/page for pages 26 - 500, and 25¢ a page thereafter. Also, a handling charge, not to exceed $5, plus actual postage, may be added.

3  Click here for: Sample letter from Lawyer to Physician
    Click here for: Sample letter from Physician to Lawyer
    Click here for: Sample Affidavit
    Click here for: Sample Letter for Records Deposition