When a lawyer wants your records
Q: A patient of mine is suing her former doctor. It's clear to me that he missed the diagnosis, although I never explicitly told her that or offered any opinion about whether he may have committed malpractice. Her attorney wants my records. Do I have to turn them over? Can he use them in lieu of expert testimony? Must I testify at a trial? Most of the physicians in my community know each other, and there'd be a lot of bad feelings if I became an expert witness for the plaintiff.
A: Once the patient signs and presents an authorization to release the records, you have to send them. If you don't do it voluntarily, the plaintiff's attorney could easily persuade a judge to issue a subpoena. Inform your malpractice carrier of the request for your records and follow any advice the insurer provides.
The plaintiff's attorney will probably have the records admitted into evidence and may have portions of them read to the jury if the case goes to trial. Ideally, the findings and reasoning in your records include only the facts, not criticism of the other physician. Even so, the attorney will try to conclude from them that the other physician was negligent, based on the fact that you made the right diagnosis and the other doctor didn't. There's really nothing you can do to prevent having your records used in this manner.
The records don't constitute expert testimony, however. And if they're not complete enough for the plaintiff's attorney to make the case clear to a jury, the attorney may insist that you testify as a nonparty witness. A judge will probably grant that request, because you're a subsequent treating physician with specific knowledge about the case. You probably don't have a right to decline, and you would be asked to interpret your records.
If you must testify, stick with the facts. The attorney may try to get you to offer an opinion about the previous physician. He may ask, "In your medical judgment, was this doctor's failure to diagnose reasonable, or did it fall below the standard of care?" He's trying to elicit expert testimony from you without paying for it. The defense attorney will probably object to that question.
You may not be able to avoid becoming a "fact" witness, but you can refuse to serve as an expert, especially if you're uncomfortable about the potential of creating animosity within a small medical community. You're not obligated to offer an opinion about another doctor's care. Experts are paid for the time they spend reviewing records and the medical literature, as well as for their time in preparing a report or testifying in court. If you haven't agreed to serve as an expert, don't volunteer your opinions.
Also don't discount the fact that you could still be named as a defendant in the lawsuit if the statute of limitations has not yet tolled. Plaintiffs' attorneys have been known to use such "shotgun" techniques as a way to get free expert testimony. If that happens, ask your insurance carrier to appoint an attorney who can make a motion to get you dismissed from the case.
The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at firstname.lastname@example.org, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to email@example.com.
Lee Johnson. Malpractice Consult. Medical Economics 2002;11:142.