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The appropriate way to compel discovery of a litigant’s medical records is with a subpoena. Or is a medical authorization signed by the litigant/patient required? There can be little dispute that medical records are generally discoverable during the course of an action involving claims for personal injuries. Nonetheless, access to those records, and the potential for claims by the patient against the requesting attorney or the disclosing physician, have recently been the subject of somewhat contradictory decisions. And the physician remains caught in the cross-hairs of a potential lawsuit. Historically, one commonly employed method attorneys used to obtain the medical records of an adverse party was to serve a subpoena duces tecum and ad testificandum upon the treating physician. The subpoena, typically served by mail, was accompanied by a letter advising that if the records were produced prior to the return date of the subpoena, a personal appearance by the physician, or his or her records custodian, would be avoided. Although the procedure failed to comply with Court Rules governing issuance of subpoenas, those rules were generally honored in the breach. ‘CRESCENZO v. CRANE’ That ended with the Appellate Court’s decision in Crescenzo v. Crane et als, 350 N.J. Super. 531 (App. Div.), certif. den., 174 N.J. 364 (2002). The Crescenzo decision arose out of a matrimonial action, not a personal injury action. In the course of the matter, the husband’s attorney served a subpoena duces tecum upon the wife’s physician, seeking production of her medical records. The wife’s attorney was not provided a copy of the subpoena and the subpoena was not accompanied by a signed authorization from the wife consenting to the release of her records. There were technical deficiencies with the subpoena itself, albeit arguably subtle ones. In response to the subpoena, the physician produced the wife’s records to the husband’s attorney, who in turn used them in the matrimonial action. The wife filed a multi-count complaint against her physician, alleging breach of confidentiality, violation of the physician-patient privilege, medical malpractice, intentional infliction of emotional distress and negligent infliction of emotional distress. The trial court dismissed the complaint but the Appellate Division reinstated it, holding that the wife could proceed with her lawsuit against her doctor. The court also permitted a claim to proceed against the attorney who issued the subpoena. The appellate court observed that the subpoena was deficient under New Jersey’s procedural rules, particularly since the wife’s attorney was not given notice and an opportunity to move to quash the subpoena. These deficiencies supported the claims against the husband’s attorney. As to the physician, the court focused on the physician-patient privilege and the duty of the physician to protect that privilege arising out of N.J.S.A. 2A:84A-22.1. See also, Biunno, “Current N.J. Rules of Evidence,” comment to N.J.R.E. 506 (Gann 2002). The court instructed that this concern would have been eliminated if the subpoena were accompanied by a signed authorization from the wife. In the absence of that, the physician could have contacted the attorney who issued the subpoena to confirm that the patient or her attorney was on notice and did not intend to move to quash. Lastly, the court suggested that a physician in such a situation could consult with his or her own attorney for advice, presumably to contact the parties to the lawsuit to ensure that the subpoena was properly served. The opinion contains a broad discussion of the court’s dissatisfaction with the frequent violations of the subpoena procedure by attorneys. Unfortunately, the physician in Crescenzo was clearly unaware of the deficiencies in the subpoena, was caught in the middle and was left defending against a lawsuit (along with the attorney who issued the improper subpoena). An attorney reading Crescenzo might reasonably advise his or her physician and health-care provider clients to insist on a properly served subpoena prior to producing patient records. This policy ensures that the patient’s attorney has an opportunity to intervene if the attorney seeks to contend that the records sought are not discoverable in the context of the pending litigation. SIMMS v. BRADACH Unfortunately, not all courts appear to agree. In Simms v. Bradach, MON-L-393-01, a defense attorney sought to enforce, through a contempt application, a subpoena to a treating doctor seeking production of a plaintiff’s medical records during the course of an automobile negligence lawsuit. [See "Judge Bars Use of Subpoenas for Medical Records," 170 N.J.L.J. 373, Nov. 4, 2002.] The physician refused to provide the records without an authorization from the plaintiff patient. Alternatively, the doctor offered to appear for deposition at his customary fee for testifying, which was not a reasonable option to defense counsel. An authorization was ultimately provided by the patient and the motion effectively mooted. Nonetheless, a hearing was conducted on the issue of the physician’s application for fees and costs incurred defending against the contempt application. That application was denied. At the conclusion of that hearing, the court advised all counsel present that a medical authorization signed by a patient, not a subpoena, was the appropriate means to obtain patient records, absent some unusual circumstances warranting court intervention. The court also advised that its ruling applied to that particular court alone and none others, noting that it alone could not establish statewide policy on the practice to be followed in obtaining medical records. The court apparently did not issue a written opinion on the issue, only an order reflecting that the motion was withdrawn. SUBPOENA OR AUTHORIZATION? Whether or not the approach by the Simms court is viewed as a precedent by other courts, a question exists as to whether its premise conflicts or comports with the Appellate Division decision in Crescenzo. Both courts appear to focus on the interest in preserving the physician-patient privilege generally applicable to patient records. Neither court suggests any conclusion that the records were not ultimately discoverable, if proper steps were followed. By demanding literal compliance with subpoena procedures, the Crescenzo decision ensures that litigants have the ability to respond to record requests in situations where the records might not be relevant and discoverable. The court’s approach in Simms seeks to ensure that the patient is aware of, and has the opportunity to, contest third-party access to his or her records before the authorization is signed and sent to adverse counsel. As one solution, the Simms court proposed a requirement that plaintiffs provide signed authorizations as a matter of course on receipt of a defendant’s answer. Unfortunately, that approach would not guarantee notice to a plaintiff of the entities to whom a defendant intends to send the authorization. In that light, perhaps a properly served subpoena is the better protector of the privilege, as discussed in Crescenzo. A subpoena, unlike an authorization, requires notice to all parties. A physician, even represented by able counsel, might be hard-pressed to argue that the Simms analysis went above the appellate court in Crescenzo and that a subpoena by itself is not enough. Nonetheless, if trial courts are inclined to follow the model espoused in Simms, those courts similarly must be responsive to applications by attorneys to compel execution of medical authorizations permitting access to medical records. Multiple authorizations may be necessary during the course of a lawsuit, particularly where physicians require an original authorization drawn to their particular office � not an infrequent occurrence. Courts might take a dim view of plaintiffs who, in a typical personal injury action, refuse to provide authorizations for present and prior treating physicians without a court order. Of course, there will always be situations where litigants endeavor to obtain medical or other personal information for no reason other than to harass or embarrass an adversary. An application for issuance of a protective order will guard against this. R. 4:10-3. LONG-IGNORED ISSUES The Crescenzo decision raises some long-ignored issues of subpoena procedures and access to privileged information held by third parties. In the context of medical records, considerations for a physician might include a blanket policy requiring a signed authorization from the patient prior to release of medical records, similar to what was suggested by the Simms court. Many defense attorneys include blank authorizations � to be filled out and executed by the plaintiff � in their initial discovery packets. An attorney who instructs his or her client to sign a blank authorization instead of taking the time to fill in the names of the particular physician or health-care provider to whom the authorization is directed may be giving up his or her right to know where the authorization will be sent and, therefore, to track the information obtained by an adversary. A physician receiving a subpoena without an authorization might make a telephone call to the attorney issuing the subpoena to identify the attorney for the patient. This might be followed up by a letter to that attorney confirming receipt of the subpoena and the physician’s intention to issue records by a date certain. Privileges attached to medical and health-care records are not mere formalities, and may remain in place even after the inception of a lawsuit by the patient. The same rule of thumb logically applies to any request from a third party made during the course of litigation for access to potentially privileged records and materials. The author is a shareholder in Budd Larner Rosenbaum Greenberg & Sade of Short Hills.

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