CONNECTICUT - RESPONDING TO SUBPOENAS AND OTHER DEMANDS FOR YOUR RECORDS AND TESTIMONY

January 1, 2008

State laws and regulations that affect your medical practice

1. How can a Connecticut physician be sure that complying with a subpoena will not violate the HIPAA privacy regulations?

HIPAA privacy requirements represent the minimum permissible level of confidentiality. In other words, states may enact more rigorous privacy standards and HIPAA will only preempt (i.e. supersede) state privacy provisions that are less stringent than the HIPAA ones. Therefore, if Connecticut law prohibits disclosure otherwise permitted under HIPAA, then disclosure is prohibited.

Connecticut law provides that patient information is privileged and may not be disclosed except as follows:

(b) Consent of the patient or his authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court, (2) by a physician, surgeon or other licensed health care provider against whom a claim has been made, or there is reasonable belief will be made, in such action or proceeding, to his attorney or professional liability insurer or such insurer's agent for use in the defense of such action or proceeding, (3) to the Commissioner of Public Health for records of a patient of a physician, surgeon or health care provider in connection with an investigation of a complaint, or (4) if child abuse, abuse of an elderly individual, abuse of an individual who is physically disabled or incompetent or abuse of an individual with mental retardation is known or in good faith suspected.

C.G.S.A. § 52-146o

HIPAA's procedural requirements for disclosure, 45 C.F.R. § 164.512(e)(1)(iii) (2003), allow for disclosure of protected health information for litigation purposes only if the disclosing entity has provided written notice of its intent to disclose with sufficient time for the individual to object to the disclosure. HIPAA substantive requirements for disclosure, 45 C.F.R. § 164.512(e)(1)(ii), allow disclosure of protected health care information to any third party as long as "satisfactory assurances" are provided. Based upon the foregoing, it appears that neither Connecticut nor HIPAA privacy laws require a patient's prior written authorization prior to disclosure of protected health information pursuant to a valid subpoena during litigation, as long as the HIPAA procedural requirements are followed (i.e., must provide proof that written notice was given to the patient with sufficient time for the patient to object).

It is important to remember that subpoenas are often overly broad and may request information which, as set forth above, is privileged. It is wise to err on the side of caution, responding to a subpoena in a professional manner but providing no information until you consult with an attorney and obtain confirmation that patient consent is either given or not required and/or notice requirements have been met.

2. What general rules should I keep in mind if served with a subpoena?:

(a) Alert your insurer if you're concerned that your testimony in a deposition might implicate you in a malpractice case.

(b) In responding to a subpoena, be sure not to breach HIPAA or patient confidentiality rules.

(c) Do not confuse a subpoena with a court order.

Remember, physicians are routinely subpoenaed to provide copies of their medical records and give testimony concerning care they have rendered. It should not automatically be a cause for panic. A subpoena does not necessarily mean you are being sued. Many are merely requests for a patient's medical records that are needed in, for example, a worker's compensation hearing or an auto accident claim. Regardless of why you have been served with a subpoena, you have to handle it very carefully.

GUIDELINES:

When served with a subpoena involving a case in which you have been sued for malpractice, contact your malpractice carrier immediately.

Notify your carrier if you have subpoenaed to testify in an existing case (usually by way of deposition), and you believe that testimony could implicate you. The subpoena might be a sign that a suit against you is under consideration, and your malpractice carrier will probably appoint an attorney to review the case, assist you in your response, prepare you for the deposition, and represent you when you testify. If you do not alert your carrier, but provide testimony or other information that implicates you in a medical liability case, your carrier could deny coverage if you are ultimately sued.

If the subpoena is no related to a malpractice action, but a lawyer simply wants records for an accident or disability case still proceed with caution. Despite the official look of the document, most subpoenas are just pieces of paper signed by an attorney. Even though they may appear to have been signed by a government official, they probably have not been. Attorneys are often authorized to sign officials' names.

Rules governing subpoenas vary from court to court and agency to agency. Your obligation to comply usually depends upon whether the document has been properly issued, signed, and served. To make sure that a subpoena is valid, determine (or ask your attorney to determine) what court or agency is involved, and whether the matter concerns a civil or criminal case. This information is generally available in the caption (the heading on the document that shows the names of the court and parties involved).

Providing information or testimony in response to an invalid subpoena, or one that improperly seeks privileged information can lead to serious problems if you breach physician-patient confidentiality or a patient's right to privacy.

Depending on the situation you may need to obtain a HIPAA-compliant patient consent to release the records or other information sought, or notify the patient that a subpoena has been issued for that information so that the patient can be given an opportunity to object to its release.

If the patient has not been notified, or objects to the release of his records, you generally should not comply without a court order. A subpoena is not a court order.

Subpoenas for patient records from certain state agencies may not require prior patient consent. In these cases, check with your attorney.

If you are being asked to provide expert testimony rather than fact testimony generally have a right to be paid for your opinion and that opinion cannot be compelled by subpoena.

Testifying in a legal proceeding can take many hours of time. If the time or place written on the subpoena is not convenient for you, ask the issuing attorney to change it. If you are required to testify before a court or other tribunal, ask the attorney to place you on two hour notice.

Your attorney can help you develop a policy for dealing with subpoenas. Once that policy is in place, you should not have to obtain a legal opinion in every instance.

3. What are some of Connecticut's specific requirements for subpoenas?

(a) Subpoenas for witnesses shall be signed by the clerk of the court or a commissioner of the Superior Court and shall be served by an officer, indifferent person or, in any criminal case in which a defendant is represented by a public defender or special assistant public defender, by an investigator of the Division of Public Defender Services. The subpoena shall be served not less than eighteen hours prior to the time designated for the person summoned to appear, unless the court orders otherwise.

(b) Subpoenas for witnesses summoned by the state, including those issued by the Attorney General or an assistant Attorney General, or by any public defender or assistant public defender acting in his official capacity may contain this statement: "Notice to the person summoned: Your statutory fees as witness will be paid by the clerk of the court where you are summoned to appear, if you give the clerk this subpoena on the day you appear. If you do not appear in court on the day and at the time stated, or on the day and at the time to which your appearance may have been postponed or continued by order of an officer of the court, the court may order that you be arrested."

(c) If any person summoned by the state, or by the Attorney General or an assistant Attorney General, or by any public defender or assistant public defender acting in his official capacity, by a subpoena containing the statement as provided in subsection (b), or if any other person upon whom a subpoena is served to appear and testify in a cause pending before any court and to whom one day's attendance and fees for traveling to court have been tendered, fails to appear and testify, without reasonable excuse, he shall be fined not more than twenty-five dollars and pay all damages to the party aggrieved; and the court or judge, on proof of the service of a subpoena containing the statement as provided in subsection (b), or on proof of the service of a subpoena and the tender of such fees, may issue a capias directed to some proper officer to arrest the witness and bring him before the court to testify.

(d) Any subpoena summoning a physician as a witness may be served upon the office manager or person in charge at the office or principal place of business of such physician who shall act as the agent of the physician named in the subpoena. Service upon the agent shall be deemed to be service upon the physician.

C.G.S.A. § 52-143

4. What does a subpoena look like?

In Connecticut, the form of a subpoena may be as follows:

To A. B. and C. D. of ....:

By authority of the state of Connecticut, you are hereby commanded to appear before the .... court, to be held at .... on the .... day of .... or to such day thereafter and within sixty days hereof on which the action is legally to be tried, to testify what you know in a certain civil action pending in the court, between E. F. of H., plaintiff, and G. A. of M., defendant.

Hereof fail not, under penalty of the law.

To any proper officer or indifferent person to serve and return.

Dated at H., etc.

J. K., (title of officer authorized to sign subpoena).

C.G.S.A. § 52-144

5. May a witness be disqualified because of his interest in the outcome of the action, religious beliefs or prior convictions?

(a) A person shall not be disqualified as a witness in any action because of (1) his interest in the outcome of the action as a party or otherwise, (2) his disbelief in the existence of a supreme being, or (3) his conviction of crime.

(b) A person's interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility.

C.G.S.A. § 52-145

6. May a wife be compelled to testify as a witness against her husband?

A wife may be compelled to testify in any action brought against her husband for necessaries furnished her while living apart from him.

C.G.S.A. § 52-146

7. What communications between a psychiatrist and a patient are considered privileged?

(a) As used in sections 52-146d to 52-146i, inclusive:

(1) "Authorized representative" means (A) a person empowered by a patient to assert the confidentiality of communications or records which are privileged under sections 52-146c to 52-146i, inclusive, or (B) if a patient is deceased, his personal representative or next of kin, or (C) if a patient is incompetent to assert or waive his privileges hereunder, (i) a guardian or conservator who has been or is appointed to act for the patient, or (ii) for the purpose of maintaining confidentiality until a guardian or conservator is appointed, the patient's nearest relative;

(2) "Communications and records" means all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition between the patient and a psychiatrist, or between a member of the patient's family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility;

(3) "Consent" means consent given in writing by the patient or his authorized representative;

(4) "Identifiable" and "identify a patient" refer to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside of the mental health facility which prepared the communications and records;

(5) "Mental health facility" includes any hospital, clinic, ward, psychiatrist's office or other facility, public or private, which provides inpatient or outpatient service, in whole or in part, relating to the diagnosis or treatment of a patient's mental condition;

(6) "Patient" means a person who communicates with or is treated by a psychiatrist in diagnosis or treatment;

(7) "Psychiatrist" means a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified.

C.G.S.A. § 52-146d

Disclosure of communications:

(a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146f to 52- 146i, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.

(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.

(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.

C.G.S.A. § 52-146e

Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited:

(1) Communications or records may be disclosed to other persons engaged in the diagnosis or treatment of the patient or may be transmitted to another mental health facility to which the patient is admitted for diagnosis or treatment if the psychiatrist in possession of the communications or records determines that the disclosure or transmission is needed to accomplish the objectives of diagnosis or treatment. The patient shall be informed that the communications or records will be so disclosed or transmitted. For purposes of this subsection, persons in professional training are to be considered as engaged in the diagnosis or treatment of the patients.

(2) Communications or records may be disclosed when the psychiatrist determines that there is substantial risk of imminent physical injury by the patient to himself or others or when a psychiatrist, in the course of diagnosis or treatment of the patient, finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility, by certification, commitment or otherwise, provided the provisions of sections 52-146d to 52-146j, inclusive, shall continue in effect after the patient is in the facility.

(3) Subject to certain exceptions, the name, address and fees for psychiatric services to a patient may be disclosed to individuals or agencies involved in the collection of fees for such services. In cases where a dispute arises over the fees or claims or where additional information is needed to substantiate the fee or claim, the disclosure of further information shall be limited to the following: (A) That the person was in fact a patient; (B) the diagnosis; (C) the dates and duration of treatment; and (D) a general description of the treatment, which shall include evidence that a treatment plan exists and has been carried out and evidence to substantiate the necessity for admission and length of stay in a health care institution or facility. If further information is required, the party seeking the information shall proceed in the same manner provided for hospital patients.

(4) Communications made to or records made by a psychiatrist in the course of a psychiatric examination ordered by a court or made in connection with the application for the appointment of a conservator by the Probate Court for good cause shown may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which the question of his incompetence because of mental illness is an issue, or in appropriate pretrial proceedings, provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient's mental condition.

(5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient's death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.

(6) Communications or records may be disclosed to (A) the Commissioner of Public Health in connection with any inspection, investigation or examination of an institution, or (B) the Commissioner of Mental Health and Addiction Services in connection with any inspection, investigation or examination.

(7) Communications or records may be disclosed to a member of the immediate family or legal representative of the victim of a homicide committed by the patient where such patient has, on or after July 1, 1989, been found not guilty of such offense by reason of mental disease or defect, provided such family member or legal representative requests the disclosure of such communications or records not later than six years after such finding, and provided further, such communications shall only be available during the pendency of, and for use in, a civil action relating to such person found not guilty.

(8) If a provider of behavioral health services that contracts with the Department of Mental Health and Addiction Services requests payment, the name and address of the person, a general description of the types of services provided, and the amount requested shall be disclosed to the department, provided notification that such disclosure will be made is sent, in writing, to the person at the earliest opportunity prior to such disclosure. In cases where a dispute arises over the fees or claims, or where additional information is needed to substantiate the claim, the disclosure of further information shall be limited to additional information necessary to clarify only the following: (A) That the person in fact received the behavioral health services in question, (B) the dates of such services, and (C) a general description of the types of services. Information the department receives pursuant to this subdivision shall be disclosed only to federal or state auditors and only as necessary for the purposes of auditing.

C.G.S.A. § 52-146f

Access to communications and records by persons engaged in research:

(a) A person engaged in research may have access to psychiatric communications and records which identify patients where needed for such research, if such person's research plan is first submitted to and approved by the director of the mental health facility or his designee.

(b) The communications and records shall not be removed from the mental health facility which prepared them. Coded data or data which does not identify a patient may be removed from a mental health facility, provided the key to the code shall remain on the premises of the facility.

(c) The mental health facility and the person doing the research shall be responsible for the preservation of the anonymity of the patients and shall not disseminate data which identifies a patient except as provided by sections 52-146d to 52-146j, inclusive.

C.G.S.A. § 146g

Transfer of information to Commissioner of Mental Health and Addiction Services; storage of records and communications:

(a) Any facility or individual under contract with the Department of Mental Health and Addiction Services to provide behavioral health services shall transmit information and records, if requested, to the Commissioner of Mental Health and Addiction Services to maintain the overall responsibility for the care and treatment of persons with psychiatric disorders or substance use disorders. The Commissioner of Mental Health and Addiction Services may collect and use the information and records for administration, planning or research, subject to the provisions of section 52-146g. The Commissioner of Mental Health and Addiction Services may enter into contracts within the state and into interstate compacts for the efficient storage and retrieval of the information and records.

(b) Identifiable data shall be removed from all information and records before issuance from the individual or facility which prepared them, and a code, the key to which shall remain in possession of the issuing facility and be otherwise available only to the Commissioner of Mental Health and Addiction Services for purposes of planning, administration or research, shall be the exclusive means of identifying patients. The key to the code shall not be available to any data banks in which the information is stored or to any other persons, corporations or agencies, private or governmental.

C.G.S.A. § 52-146h

Labeling of confidential records:

All written communications or records disclosed to another person or agency shall bear the following statement: "The confidentiality of this record is required under chapter 899 of the Connecticut general statutes. This material shall not be transmitted to anyone without written consent or other authorization as provided in the aforementioned statutes." A copy of the consent form specifying to whom and for what specific use the communication or record is transmitted or a statement setting forth any other statutory authorization for transmittal and the limitations imposed thereon shall accompany such communication or record. In cases where the disclosure is made orally, the person disclosing the information shall inform the recipient that such information is governed by the provisions of sections 52-146d to 52- 146j, inclusive.

C.G.S.A. § 52-146i

Judicial relief:

(a) Any person aggrieved by a violation of sections 52-146d to 52-146j, inclusive, may petition the superior court for the judicial district in which he resides, or, in the case of a nonresident of the state, the superior court for the judicial district of Hartford, for appropriate relief, including temporary and permanent injunctions, and the petition shall be privileged with respect to assignment for trial.

(b) Any person aggrieved by a violation of sections 52-146d to 52-146j, inclusive, may prove a cause of action for civil damages.

C.G.S.A. § 52-146j

8. May an interpreter disclose privileged information?

Any confidential communication which is deemed to be privileged under any provision of the general statutes or under the common law made by a person with the assistance of an interpreter shall not be disclosed by such interpreter in any civil or criminal case or proceeding or in any legislative or administrative proceeding, unless the person making the confidential communication waives such privilege.

C.G.S.A. § 52-146l

Any communication made by or to a deaf or hearing impaired person with the assistance of a person operating special telecommunications equipment capable of serving the needs of deaf or hearing impaired persons shall be deemed to be confidential and privileged and shall not be disclosed by such operator in any civil or criminal case or proceeding or in any legislative or administrative proceeding, unless the person making the confidential communication waives such privilege.

C.G.S.A. § 52-146m

9. Is information regarding participation in an employee assistance program privileged?

(a) For purposes of this section:

(1) "Employee assistance program counselor" means any person engaged in directing or staffing any employee assistance program which may be established by the supreme court upon recommendation of the Chief Court Administrator for the employees of the judicial department;

(2) "Confidential communications" means all oral and written communications transmitted in confidence between an employee of the judicial department and an employee assistance program counselor in the course of their relationship in the employee assistance program and all records prepared by the counselor in the course of that relationship with such employee; and

(3) "Employees of the judicial department" means full-time and part-time employees of the judicial department including judges of the supreme court, appellate court and superior court but excluding the employees and judges of the probate courts.

(b) No employee assistance program counselor shall disclose any confidential communications to any third person, other than a person to whom disclosure is reasonably necessary for the accomplishment of the purposes for which such counselor is consulted, or in any civil or criminal case or proceeding or in any legislative or administrative proceeding, unless the employee making the confidential communication waives the privilege.

(c) No person in any civil or criminal case or proceeding or in any legislative or administrative proceeding may request or require information from any employee of the judicial department relating to an employee's participation in an employee assistance program, including whether or not such employee at any time participated in such employee assistance program.

C.G.S.A. § 52-146n

10. Is the disclosure of patient communications or information by a physician, surgeon or health care provider prohibited?

(a) Except as provided in sections 52-146c to 52-146j, inclusive, and subsection (b) of this section, in any civil action or any proceeding preliminary thereto or in any probate, legislative or administrative proceeding, a physician or surgeon shall not disclose (1) any communication made to him by, or any information obtained by him from, a patient or the conservator or guardian of a patient with respect to any actual or supposed physical or mental disease or disorder or (2) any information obtained by personal examination of a patient, unless the patient or his authorized representative explicitly consents to such disclosure.

(b) Consent of the patient or his authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court, (2) by a physician, surgeon or other licensed health care provider against whom a claim has been made, or there is a reasonable belief will be made, in such action or proceeding, to his attorney or professional liability insurer or such insurer's agent for use in the defense of such action or proceeding, (3) to the Commissioner of Public Health for records of a patient of a physician, surgeon or health care provider in connection with an investigation of a complaint, if such records are related to the complaint, or (4) if child abuse, abuse of an elderly individual, abuse of an individual who is physically disabled or incompetent or abuse of an individual with mental retardation is known or in good faith suspected.

C.G.S.A. § 52-146o

11. Is advance notice required prior to taking the deposition of a person?

(a) No party may take the deposition of any person unless he has first given reasonable written notice to each adverse party or his known agent or attorney of the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. Such notice shall be served by an indifferent person at the usual place of abode of each person entitled to notice or by mailing such notice to him by certified mail.

(b) An order of the court is not required for the taking of a deposition by the party initiating a civil action or probate proceeding if the notice (1) states that the person to be examined is about to go out of this state, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the twenty-day period, and (2) sets forth facts to support such statements. The attorney for the party seeking to take the deposition shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true.

(c) Whenever the whereabouts of any adverse party is unknown, a deposition may be taken pursuant to section 52-148a after such notice as the court, in which such deposition is to be used, or, when such court is not in session, any judge thereof, may direct.

C.G.S.A. § 52-148b

12. Before whom may depositions be taken?

(a) Within this state, depositions shall be taken before a judge or clerk of any court, justice of the peace, notary public or commissioner of the superior court.

(b) In any other state or country, depositions for use in a civil action or probate proceeding within this state shall be taken before a notary public, a commissioner appointed by the governor of this state, any magistrate having power to administer oaths or a person commissioned by the court before which such action or proceeding is pending, or when such court is not in session, by any judge thereof. Any person so commissioned shall have the power by virtue of his commission to administer any necessary oath and to take testimony. Additionally, if a deposition is to be taken out of the United States, it may be taken before any foreign minister, secretary of a legation, consul or vice-consul, appointed by the United States or any person by him appointed for the purpose and having authority under the laws of the country where the deposition is to be taken; and the official character of any such person may be proved by a certificate from the Secretary of State of the United States.

C.G.S.A. § 52-148c

13. What are the requirements for taking of depositions?

(a) All witnesses or parties giving depositions shall be cautioned to speak the whole truth and be carefully examined, and shall subscribe their depositions, and make oath before the authority taking the depositions.

(b) The authority taking a deposition shall: (1) Attest the subscribing of the deposition and oath of the person deposed, (2) certify whether each adverse party or his agent was present and notified, (3) certify the reason for taking the deposition, and (4) seal the deposition and direct it to the court where it is to be used and deliver it, if requested, to the party at whose request it was taken.

(c) The party on whose behalf the deposition of an adverse party is taken shall be subject to having his deposition taken on behalf of such adverse party. The party on whose behalf a deposition is taken shall at his expense provide a copy of the deposition to each adverse party.

C.G.S.A. § 52-148d

14. What are the requirements for issuing a subpoena for the taking of a deposition?

(a) Each judge or clerk of any court, justice of the peace, notary public or commissioner of the superior court, in this state, may issue a subpoena, upon request, for the appearance of any witness before him to give his deposition in a civil action or probate proceeding, if the party seeking to take such person's deposition has complied with the provisions of sections 52-148a and 52-148b and may take his deposition, each adverse party or his agent being present or notified.

(b) The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which are material to the cause of action or the defense of the party at whose request the subpoena was issued and within the possession or control of the person to be examined. However, no subpoena may compel the production of matters which are privileged or otherwise protected by law from discovery.

(c) Any person to whom a subpoena commanding production of books, papers, documents or tangible things has been directed may, within fifteen days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than fifteen days after service, serve upon the issuing authority designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party at whose request the subpoena was issued shall not be entitled to inspect and copy the disputed materials except pursuant to an order of the court in which the cause is pending. The party who requested the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.

(d) The court in which the cause is pending may, upon motion made promptly and in any event at or before the time for compliance specified in a subpoena authorized by subsection (b) of this section, (1) quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production under the provisions of subsection (b) of this section, or (2) condition denial of the motion upon the advancement by the party who requested the subpoena of the reasonable cost of producing the materials which he is seeking.

(e) If any person to whom a lawful subpoena is issued under any provision of this section fails without just excuse to comply with any of its terms, the court before which the cause is pending, or any judge thereof, may issue a capias and cause him to be brought before such court or judge, as the case may be, and, if the person subpoenaed refuses to comply with said subpoena, such court or judge may commit him to jail until he signifies his willingness to comply with it.

(f) Deposition of witnesses living in this state may be taken in like manner to be used as evidence in a civil action or probate proceeding pending in any court of the United States or of any other state of the United States or of any foreign country, on application to the court in which such civil action or probate proceeding is pending of any party to such civil action or probate proceeding. The Superior Court shall have jurisdiction to quash or modify, or to enforce compliance with, a subpoena issued for the taking of a deposition pursuant to this subsection.

C.G.S.A. § 52-148e

15. What are the specific requirements for depositions of medical witnesses?

(a) The deposition of any physician, psychologist, chiropractor, natureopathic physician or dentist licensed under the provisions of the general statutes, may be taken on behalf of either party to any civil action, workers' compensation matter or probate proceeding, in which the physician, psychologist, chiropractor, naturopathic physician or dentist may be called as an expert witness, on notice by certified mail to each adverse party or the party's attorney, as the case may be. The deposition may be received in evidence at the trial or hearing of the civil action, workers' compensation matter or probate proceeding in lieu of the appearance of the witness in court or at the hearing. The deposition may be taken by stenographic means, videotape or in such other manner as may be provided by rule of court or of the compensation commissioners.

(b) Whenever the deposition of a physician, psychologist, chiropractor, naturopathic physician or dentist is so taken, the party requesting the deposition shall pay to the medical expert the fee for giving testimony for the deposition.

C.G.S.A. § 52-149a

16. May a deposition be adjourned?

The authority before whom a deposition is taken may adjourn the taking thereof from time to time, as necessity or convenience may require, giving notice thereof to the parties present.

C.G.S.A. § 52-157

17. May a deposition be used in appellate court?

Any deposition legally taken to be used upon the hearing or trial of any cause, and legally admissible therein, may be used by either party in any appellate court or tribunal where such evidence is competent.

C.G.S.A. § 52-158

18. May a deposition be used in another action?

The testimony of any witness, taken by deposition, in any civil action may be used in another civil action between the same parties, or their executors or administrators, and upon the same cause of action, to the same extent and as fully as though originally taken for use in such cause. The original deposition, when the authenticity of the same has been established, or a copy thereof, certified by the clerk of the court to which the original action was brought, shall be admitted in evidence as though originally taken for use in such cause.

C.G.S.A. § 52-159

19. Is testimony of a witness recorded in a former trial admissible in subsequent trial?

If any witness in a civil action is beyond the reach of the process of the courts of this state, or cannot be found, and his testimony has been taken by the court stenographer or reporter upon a former trial of the action, a transcript of the record of the testimony, verified by the oath of the stenographer or court reporter, shall be admissible in evidence, in the discretion of the court, upon any subsequent trial of the action, in the same manner and to the same extent as a deposition of the witness would be if legally taken.

C.G.S.A. § 52-160

20. Is the failure to bill a patient admissible in a medical malpractice case?

(a) For the purposes of this section, "health care provider" means any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment.

(b) The failure of a health care provider to bill a patient for services rendered shall not be construed as an admission of liability and shall not be admissible in evidence as to liability in any trial for malpractice, error or omission against a health care provider in connection with the provision of health care or professional services.

(c) Any advance payment for medical bills by a health care provider or by the insurer of a health care provider shall not be construed as an admission of liability and shall not be admissible in evidence as to liability in any trial for malpractice, error or omission against a health care provider in connection with the provision of health care or professional services.

C.G.S.A. § 52-184b

21. Is an apology made by a health care provider to the alleged victim of unanticipated outcome of medical care admissible?

(a) For the purposes of this section:

(1) "Health care provider" means a provider, or an institution, and includes a health care institution or facility operated by the state;

(2) "Relative" means a victim's spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half brother, half sister or spouse's parents, and includes such relationships that are created as a result of adoption and any person who has a family-type relationship with a victim;

(3) "Representative" means a legal guardian, attorney, health care representative or any person recognized in law or custom as a patient's agent.

(4) "Unanticipated outcome" means the outcome of a medical treatment or procedure that differs from an expected result.

(b) In any civil action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such civil action, any and all statements, affirmations, gestures or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim or a representative of the alleged victim and that relate to the discomfort, pain, suffering, injury or death of the alleged victim as a result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

C.G.S.A. § 52-184d

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.