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The Medical Society of New Jersey, acting for doctors afraid of violating patients’ rights, has won a trial court ruling that bars the use of subpoenas to obtain treatment records. Superior Court Judge Robert Feldman in Middlesex County, N.J., says the only way to get a record is to send the doctor a patient authorization. If that fails, the lawyer should get a court order. Merely sending a subpoena that requires the doctor to appear at a deposition with the records is unacceptable, Feldman said in Simms v. Bradach, MON-L-393-01. A transcript of the Sept. 13 bench ruling was made public last week by medical society counsel Steven Kern, who filed an amicus brief. Feldman’s decision, which seems to exempt doctors from a court rule authorizing the subpoena method of obtaining evidence, isn’t binding on any other judge. But Kern says the reasoning is instructive and he is asking the Administrative Office of the Courts to codify the principles in a new court rule. Kern says the decision is good because doctors have become increasingly wary about suits by patients invoking privacy rights. Physicians also are in no mood for a subpoena procedure they view as a method carriers can use to avoid paying the $1-per-page reproduction cost allowed by the state administrative code. “What the ruling tells counsel is, ‘first, don’t put the doctor in the middle of a problem between litigants, and, second, pay for the copies,’” says Kern of Bridgewater, N.J.’s Kern Augustine Conroy & Schoppmann. It started as a routine traffic accident case last year, brought by Eric Simms of Marlboro, N.J., who claimed his back was injured in a collision. Before the accident, Simms had been treated by Freehold, N.J., orthopedist Michael Greller — which is why defense lawyers at Selective Insurance Co.’s in-house firm, Romando, Astorino & DeMille in Hamilton, N.J., wanted to view Greller’s files on Simms. First, according to pleadings in the case, defense counsel Elizabeth Brennan sent Greller a subpoena requiring him to bring the records to the defense firm’s office or mail the copies. When Greller replied he would not comply without a patient authorization, Brennan sent another subpoena for the records custodian to show up at the law office with the files for a June 26 deposition. A check for $4 to cover the attendance fee plus $2 for mileage also was sent. Greller’s office manager offered the firm two alternatives: It could pay the doctor $2,000 for a personal appearance with the records, or it could send him a patient authorization and get the records for a $10 copying cost. When Greller’s office didn’t respond to the second subpoena, Brennan filed a motion for contempt, which brought the matter before Feldman. The head of Brennan’s office, Thomas Romando, declines to comment. But in a letter to Kern attached to the pleadings, he said that the subpoena method complied with the relevant rule of civil procedure, R. 4:124-7(c). Under that rule, a witness can be subpoenaed to show up at a deposition with requested evidence. In practice, though, subpoenas to doctors are usually accompanied by letters saying there’s no need for the doctor to appear if the records are sent. In a recent decision on the issue, Crescenzo v. Carne, 350 N.J. Super. 431 (App. Div. 2002), the court didn’t object to the subpoena method, but it did say that if doctors don’t have the patient’s authorization, they must seek such authorization or notify the attorney serving the subpoena, rather than complying. Feldman seemed to go farther and suggest that it was the requesting lawyer’s obligation to get the authorization. “My view is that, absent a patient authorization, one should not follow the subpoena route with doctors because I think we’re putting the doctors in a rather unenviable position.” Requesting lawyers who can’t get the authorization can go to court and get an order for the records, he added. “Any judge will sign it routinely, and that way everybody is off the hook. Then you have no question of a valid piece of paper, that the doctor would be more than glad to honor.” At “a buck a page copying charges,” the judge added. For the record, Brennan obtained the authorization before Feldman ruled, making it a moot point, but the judge decided the case anyway, telling Kern somewhat wryly, “now you can go back to tell the Medical Society that you have raised their standards on high.” It doesn’t say in the pleadings why Brennan did not seek a patient authorization from the outset from the plaintiff’s counsel, Eric Kahn of Springfield, N.J.’s Javerbaum, Wurgaft, Hicks & Zarin. But Kern offers a reason. He says defense counsel routinely use subpoenas because they do not want to pay the copying costs. Under the administrative code, the $1 per page charge is capped at $100 and there is a minimum fee of $10, but nothing in the subpoena rule requires payment of the costs. Those charges can add up to substantial sums for carriers that insure large numbers of motorists, Kern says, though Brennan told Feldman she routinely pays such costs even when issuing subpoenas. So do most defense counsel, a couple of experienced lawyers in the field say. They also say, however, that the subpoena method of obtaining records is being used less and less because everyone has been sensitized to privacy issues. There are times, though, when it’s impossible to get plaintiffs or their attorneys to respond to a request for an authorization, says the president of the New Jersey Defense Association, Brian O’Toole of Whippany’s O’Toole & Couch. When that happens, defense counsel can send a subpoena to get the doctor’s attention and attach a filled-out patient authorization form ready for the patient’s signature. O’Toole says doctors who object to complying with document requests may not always be concerned about patient rights. “I think the real motivation is they don’t want to get involved,” he says. Jack Maloof of Chatham, N.J.’s Maloof, Lebowitz, Connahan & Oleske says he used to use the subpoena method, but now routinely requests blanket authorizations when filing answers. When that does not work, he says, it’s not that big a deal to make a motion to compel provision of the records. “We do it all the time,” he says.

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