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CODE OF COOPERATION BETWEEN THE TENNESSEE BAR ASSOCIATION AND THE TENNESSEE MEDICAL ASSOCIATION
This Code recognizes that there is a significant interrelationship between medicine and law. A substantial part of that interrelationship is concerned with the problems of persons who are in need of the combined services of an attorney and a physician and that the individual problems in these circumstances are best served by the cooperative efforts of all concerned. It is believed that the interests of the patient/client can best be served when the two professions understand the goals and responsibilities of the other and work together with cooperation and mutual respect. Therefore, the members of the Tennessee Medical Association and the Tennessee Bar Association do adopt and recommend the following Code of Cooperation as standards of proper conduct for physicians and attorneys to promote understanding and cooperation between the two professions.
Section 1. GENERAL
Unlike most states, there is no general physician-patient privilege in Tennessee. Only communications between a patient and a physician "practicing as a psychiatrist" are protected from disclosure under state law. Even the limited psychiatrist-patient privilege does not apply if the patient's mental or emotional condition is an issue in a lawsuit.
As an ethical matter, however, the American Medical Association takes the position that information disclosed to any physician by a patient is "confidential to the greatest possible degree" and that the physician "should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law." It should be noted that Tennessee law provides that the Board of Medical Examiners can take disciplinary action against a physician for certain proscribed conduct, including "willfully betraying a professional secret."
While, as a general rule, a patient's medical records and information known to the patient's physician are considered confidential, certain exceptions apply when the patient has brought a lawsuit raising an issue which concerns the patient's medical or physical condition. These exceptions permit a physician, both legally and ethically, to disclose otherwise confidential information about a patient.
Section 2. PATIENT'S WRITTEN AUTHORIZATION
Patients may authorize their attorneys, as well as attorneys for other parties in a lawsuit, to obtain a copy or a summary of their medical records or information related to their medical condition. If presented with a signed authorization (such as the form included in the Appendix to this Code), the physician is obligated to provide a copy of the patient's records to the person authorized to receive them. The authorization must be signed by the patient, the parent or guardian of a minor patient, the legal guardian of an incompetent patient, or the personal representative or next-of-kin if the patient is deceased.
An authorization may be general or limited. It may be a general release to allow inquiry into all aspects of the physician-patient relationship, or it may be limited to only certain conditions or time periods or to copies of medical records only. An authorization may also be revoked by the patient upon written notice to the physician.
An attorney who represents a client whose mental or physical condition is an issue in a lawsuit should provide opposing counsel with a medical authorization if requested to do so.
Section 3. DEPOSITIONS
Medical information, including medical records, may be disclosed at a deposition if the patient is a party to the lawsuit or if notice has been given to the patient or the patient's attorney that the information will be disclosed at the deposition.
Section 4. COURT ORDER
A physician must produce copies of medical records in response to a court order in accordance with the terms of the order.
Section 5. SUBPOENA
A subpoena issued by the clerk of a Tennessee court or a federal court may require a physician to bring a patient's medical record to a deposition.
A subpoena may not be issued requiring a physician to send medical records to an attorney. Attorneys are required by the rules of civil procedure to issue a subpoena commanding a witness to appear at a trial, hearing, or deposition and to bring the records. The purpose of this is to prevent an attorney from getting medical records from a doctor when the patient and the patient's attorney are not aware that adverse counsel is acquiring them. A physician should not refuse to turn over records in response to a subpoena without first consulting a personal attorney.
A subpoena may also require a custodian of a physician's medical records to present the medical records and give a deposition as to how the records are maintained. The custodian of the records must appear with the records at the time and place designated in the subpoena.
Section 6. WORKERS' COMPENSATION CASES
If a physician treats a patient for an injury covered by workers' compensation benefits and is billing the employer or the employer's insurer directly, the physician is required by statute to provide medical records and medical reports to the employer or the employer's workers' compensation carrier. Only those records relating to the injury which is the subject of the workers' compensation claim should be disclosed. The statute requiring disclosure does not apply where the physician is employed solely by the injured worker for treatment or evaluation.
Section 7. CRIMINAL INVESTIGATIONS
A large number of federal and state agencies have the authority to issue "investigative" subpoenas, i.e., subpoenas where no lawsuit has been filed. Such agencies include, for example, the Federal Bureau of Investigation (FBI), the Tennessee Bureau of Investigation (TBI), the Internal Revenue Service (IRS), the Drug Enforcement Administration (DEA), and agencies which work either on the federal level with the United States Attorney's Office or with state and local attorneys general. Examples of such subpoenas would include investigative efforts by federal and state grand juries. In response to a subpoena for a patient's medical records from the FBI or TBI, the physician should provide the agent with copies of the patient's medical records.
Section 8. LICENSURE INVESTIGATIONS
The Office of the General Counsel for the Department of Health has the power to issue subpoenas once a Notice of Charges has been filed before a licensing board. The subpoena can direct the production of documentary evidence, it can compel a person to testify at a hearing, or it can compel a witness to testify by deposition.
Medical records are those documents maintained by a physician which reflect the patient's medical history and which are made and kept as the patient is seen by the physician for treatment or consultation. They are kept for the benefit of both the patient and the physician. According to the American Medical Association, the medical records belong to the physician, but copies of the records should be provided to the patient upon request.
When asked to provide a copy of a patient's medical record, the physician should provide a copy of each document within the patient's file. If, for some reason, the physician declines to provide a copy of the entire file, the physician should notify the attorney requesting a copy of the medical record as to which documents have not been provided in response to the request.
Most problems with providing copies of medical records can be resolved by effective communication between the physician and the attorney requesting the records. An attorney should not resort to subpoenaing the physician to bring a medical record to the attorney's office for copying unless reasonable efforts to obtain copies from the physician have failed.
Section 1. FROM A TREATING PHYSICIAN
In order to evaluate or prepare a client's case, an attorney may request a medical report from the treating physician. These requests generally elicit information and opinions not ordinarily part of the patient's medical record. Adequate medical reports play an important part in an attorney's evaluation of the patient's lawsuit and can also reduce the amount of time required for depositions. Consequently, the physician should comply fully and promptly with requests for medical reports.
An attorney should outline in a letter to the physician the specific information required in the medical report and request the report at least 30 days before it is needed. The attorney should provide the physician with a written authorization from the client/patient for release of the requested information.
If the physician is unable to make a complete medical evaluation within 30 days of the request for a medical report, the attorney should be notified promptly; delays in receiving medical information may prejudice the patient's legal position. Perhaps a preliminary report, clearly designated as such, may serve the attorney's needs until a complete evaluation can be given.
The following information, where applicable, should be included in the report of a treating physician:
1. Date, time, and place of first visit;
2. An accurate history of the injury or medical condition, including any preexisting diseases or prior injuries;
3. The nature of the physician's examination and findings;
4. The results of pertinent laboratory studies, x-rays, and consultations;
5. A summary of the treatment rendered, the results of subsequent examinations, x-rays and other tests and consultations, and the patient's response to treatment;
6. The dates or periods during which the patient was unable to work in a usual occupation;
7. The physician's diagnosis and prognosis, including an evaluation of future impairment or surgery, the effect or aggravation of any preexisting disease or prior injury, and the length of convalescence;
8. A statement as to whether the patient's condition is stable or whether the patient has been discharged or continues under care and treatment;
9. As a separate enclosure, an itemized statement of the physician's charges to date, omitting charges for medical reports or attorney consultation;
10. An estimate of the cost of future medical care.
Upon request, supplemental reports should be sent periodically to the attorney requesting the report. A final report upon the patient's discharge or referral to another physician should be submitted only if requested.
Section 2. FROM AN EXAMINING PHYSICIAN
When the physical or mental condition of a party to a lawsuit is in controversy, the opposing attorneys may agree to (or the court may order) a physical or mental examination of the party by an independent physician.
The attorney requesting the examination has the responsibility of making arrangements with the examining physician for the date and time of the examination as well as the scope of the examination.
The physician, after examining the party, submits a detailed written report to the attorney requesting the examination, setting out the physician's findings, including results of all tests made, diagnoses, and conclusions. The list included in the preceding section for reports of treating physicians may be used as a guide. The attorney for the injured party may also request a physician to evaluate the client's condition and submit a written report.
Section 1. GENERAL
Professional courtesy to the physician and duty to the client demand that the attorney confer at appropriate stages with the physician, and similar considerations demand that the physician recognize the necessity for one or more conferences and be available at a mutually convenient time. The physician and attorney are burdened with a heavy schedule of daily activities and neither should make unreasonable demands upon the other, but should yield to the dictates of ordinary civilities and strive to adjust their activities in such a manner as to produce minimum inconvenience. Absent an unforeseen emergency, it is an act of discourtesy for either to keep the other waiting for an appointment, conference, deposition, or any other engagement.
Section 2. PREDEPOSITION AND PRETRIAL CONFERENCES
It is the duty of each profession to present fairly and adequately the medical questions involved in legal controversies. To that end, predeposition and/or pretrial discussions between the physician and the attorney should be arranged in order that they may have a full and frank discussion of the pertinent medical and legal issues. It is preferable to undertake to offer medical testimony with the advantage of such a conference. A physician is not a witness for either party and may freely conduct such a conference with the attorney representing each side of the controversy.
THE PHYSICIAN WITNESS
Section 1. GENERAL
The American system of justice depends upon the obligation of every citizen, including physicians, to attend judicial proceedings and give testimony when such testimony is relevant to a case. Attorneys have a concomitant duty to avoid abusing the power of legal process and should take steps to minimize inconvenience to the physician (especially because of its impact on the physician's patients) insofar as possible.
In Tennessee, most medical testimony is given by deposition in the physician's office. Under state law, a physician has a statutory exemption from a subpoena to testify at the trial of a civil case. In federal court, however, the physician can be compelled to attend the trial and give testimony in open court as do other witnesses. Whether the physician's testimony is given by deposition or in court, the testimony is under oath.
Section 2. TESTIMONY BY DEPOSITION
a. Deposition Defined:
A deposition is an official proceeding authorized by law whereby a person, such as a physician, may be required to give testimony and be cross-examined under oath outside of court, before a person authorized by law to administer oaths, and in the presence of attorneys representing the parties. The physician may be required to produce medical records at the deposition. The physician may also be required to release these records, i.e., complete records, x-rays, ECGs, EEGs, to the court reporter for duplication and return.
b. Time and Place:
The time and place of the deposition should be fixed by agreement. Unless there is a compelling reason to the contrary, it should be taken at the physician's office. As a courtesy, the attorney should arrive promptly and the physician should be available at the agreed time.
Because of conditions in a particular case or jurisdiction or the necessity for protecting the interests of the client, the attorney may find it necessary to subpoena the physician as a witness. (See also Article I, Section 4)
d. Subpoenas--Medical Records:
Production of medical records may also be required by subpoena served on the physician or the custodian of the physician's records. If so, the records must not be delivered or disclosed to the process server. The subpoena requires the person served to attend the deposition at the time and place stated in the subpoena and there produce the specified records. It is improper for a process server to obtain possession of subpoenaed records; it is also improper for a process server to state that it will not be necessary for the physician to attend the deposition hearing described in the subpoena if the medical records are surrendered for copying or otherwise. However, the physician may produce medical records by mailing legible photocopies if the subpoena so states.
e. If Attendance at Deposition is a Hardship:
If the time and place described for the deposition creates a hardship, the attorney or physician having the conflict should immediately bring this fact to the attention of all concerned parties.
Section 3. THE PHYSICIAN IN COURT
a. Duty to Testify:
Our system of justice depends upon being able to require any citizen's attendance at a judicial proceeding and to give testimony regarding the case. A physician must respond to a subpoena in criminal cases and in the federal courts as any other citizen except where a grave emergency prevents the physician from doing so. The same obligation exists in all other cases unless the physician claims the exemption in the manner provided by law. (See Article V, Section 1). To obtain the benefit of the exemption the physician must notify the officers serving the subpoena that they are serving a physician and claim the exemption. Failure on the part of the physician to so comply with the statute voids the exemption and the physician is required to appear in court as commanded by the subpoena unless, upon application made to the judge before whom the case is set, the physician is excused. Notwithstanding the above, it is incumbent upon lawyers to recognize that court appearances operate to deprive the physician of valuable and sorely needed time. Moreover, there are many cases of personal injury wherein the injuries lie within the common knowledge of the layman and therefore the appearance of the physician serves no useful purpose. However, in those cases involving serious injury, complicated procedures and/or permanent disability, the personal appearance of the physician is highly desirable, if not indispensable.
Attorneys and physicians are enjoined to approach this problem on a mutually fair basis and to arrive at an understanding which will facilitate more complete justice which is the historic object of all court procedures.
b. Subpoenas for Trial:
Attorneys subpoena medical witnesses because:
1. It may be desirable in a particular case for the physician to appear and testify in person, if asked, pursuant to a subpoena; or
2. It may be essential in order to secure a continuance if for any reason the physician fails to appear as required.
A physician, therefore, should not take offense at being served with a subpoena. Cooperation and communication between professions is essential. Physicians should be given reasonable notice of pending court appearances. It is up to the attorney who caused the subpoena to be issued to see that the subpoena has been served within a reasonable time. Additionally, if settlement of the case occurs prior to the court appearance the attorney should provide as timely a notice to the physician as is possible.
c. Arrangements for Court Appearances:
In arranging for the attendance of a physician at a trial the attorney should always give due regard and consideration to the professional demands upon the physician's time. Accordingly, it is the duty and responsibility of the attorney, before the trial:
1. To give the physician reasonable notice in advance of any intention to call the physician as a witness;
2. To arrange for the physician's voluntary attendance or to advise the physician of any intention to have a subpoena issued, if either the physician or attorney deem this necessary or desirable;
3. To advise the physician of the date, approximate time and place of testimony;
4. To advise the physician to bring such records as will be needed for the proper presentation.
During the trial, the attorney is obligated, as a matter of courtesy:
1. To call the physician after the trial has commenced, and thereafter as the trial progresses, and give the best possible estimate of the approximate time the physician will take the witness stand;
2. To call the physician to the witness stand as promptly as possible.
Section 4. EXPERT WITNESS
Although all physicians are "expert witnesses" because of their experience and medical training, a technical distinction is made between physicians who testify based upon and about facts gained from personal observation of a patient (fact witnesses), and physicians who give opinions based upon facts furnished to them for review in the course of litigation (expert witnesses). Physicians may be asked to testify as expert witnesses most frequently in medical malpractice cases regarding the standard of care and whether, under the facts presented in a lawsuit, there was a deviation from the standard of care. Physicians may also be asked to give their opinions as expert witnesses regarding the cause of a party's injury or illness in personal injury cases.
A physician is generally considered to have no legal duty to give opinions as an expert witness. For the most part, treating physicians are only expected to give opinions relating to their own evaluation and treatment of the patient.
If a physician has been retained as an expert witness by an attorney, the attorney may properly require -- as part of the physician's contract of employment -- that the physician not discuss the lawsuit or the physician's opinions as an expert witness with the attorneys for other parties to the lawsuit. Attorneys for other parties may properly ask the expert witness for information. However, these inquiries must be initiated through the contracting attorney and not through the expert witness directly.
COMPENSATION OF PHYSICIAN
Section 1. GENERAL
A potential source of conflict between the medical and legal professions is the nonpayment of fees for the services of a physician as a medical witness, an expert medical evaluator, or for medical reports, copies of records or time spent preparing for and giving depositions. While instances of nonpayment are rare, they are common enough in some localities to arouse strong feelings. Most problems in this regard could be avoided if the physician's charges and the responsibility for payment were discussed and agreed to by the physician and the attorney in advance of the physician's services. A request by an attorney for a physician's services should state the person responsible for the charges.
The guidelines in Article VI are necessarily broad in scope and generalized in nature. They require sincerity of application and forthrightness of interpretation by our respective professions in the pursuit of the standards herein established.
Section 2. COMPENSATION MUST NOT BE CONTINGENT
Under no circumstances may a physician charge or accept compensation for any service which is contingent upon the outcome of a lawsuit.
Section 3. COMPENSATION FOR REPORTS
a. By an Attending Physician:
The attending physician is entitled to a reasonable fee for the preparation of narrative reports. A clerical fee only should be charged for duplication of records.
b. By an Examining Physician:
The compensation of an examining physician rests principally upon contract or is determined by custom and past practice. As a guideline, however, the examining physician should charge for the reasonable value of services so rendered on the same basis as if services were not rendered to a patient involved in litigation, or should make such charge as is customary in the particular field or medical specialty. If there is any question as to the charge, it should be discussed and an agreement reached prior to the rendition of the requested services.
Section 4. CONFERENCES AND CONSULTATIONS
The physician is entitled to fair and reasonable compensation for time expended in conference or consultation with the attorney and in preparation therefor, provided, however, this charge should be consistent with the customary charges made by the physician in the course of practice.
Section 5. DEPOSITIONS AND COURT APPEARANCES
The physician is entitled to fair and reasonable compensation for depositions and court appearances.
An attorney should not request a physician to testify by deposition or in court, nor should the attorney subpoena the physician, without making arrangements for reasonable compensation. Unless a course of dealings has been established between the attorney and physician, the matter of compensation should be arrived at by conference in advance of the deposition or trial.
Section 6. RESPONSIBILITY FOR PAYMENT
It shall be the obligation of the attorney to take all reasonable steps and to make every reasonable effort to insure that adequate arrangements are made for the payment, by the client, of all compensation of attending physicians for services rendered in connection with litigation. This shall include reports, conferences, consultations, depositions and trial appearances.
The payment of an examining physician's fee for the examination and report, and subsequent depositions or court appearances, is the obligation of the attorney requesting such an examination.
Appendix A provides a suggested solution to the matter of the compensation of physicians by the simple expedient of obtaining the client's authorization to pay the physician's compensation out of the proceeds of any recovery.
This procedure is to be encouraged.
ADMINISTRATION OF CODE AND
The Tennessee Medical Association and the Tennessee Bar Association, by appropriate action, shall appoint or designate six members from each Association (two from each Grand Division of the State). The 12 members so selected shall be known and designated as the "Medical-Legal Code Committee."
Two of the initial members from each Association shall serve for one year, two for two years, and two for three years; thereafter, members shall be appointed for three-year terms.
The chairmanship of the committee will rotate annually between the two professions, with the committee selecting its own chairman. There shall be a vice-chairman from the Association not having the chairmanship.
The Medical-Legal Code Committee shall:
a. Meet upon call of the chairman, or upon call by any five members.
b. Promulgate such suggestions as may be necessary to carry into effect the principles hereby adopted.
c. Attempt to mediate and arbitrate, on a local level, any disagreement arising between individual physicians and individual attorneys, and to this end, the committee is authorized to sit in sections of four members each (one section from each Grand Division of the State), and to hold such hearings at such times and places as the section may deem appropriate.
If the foregoing procedure shall not result in a satisfactory settlement or adjustment of the dispute, any dissatisfied party, or the section itself, may request a hearing before the full committee.
If the hearing before the full committee does not resolve the controversy, the chairman of the committee shall certify the facts to the Board of Trustees of the Tennessee Medical Association and the Board of Governors of the Tennessee Bar Association for such action as may be appropriate.
d. Report annually to each Association the activities of the committee during the year and make such recommendations as the committee considers proper.
Each profession is obligated by its own stature to respect and honor the calling of the other. One who has chosen to be a physician or an attorney and has been found competent to be such by appropriate authorities is vested with high responsibilities and privileges to serve the public with honor, with dignity, and with effectiveness. These standards of practice are intended as a guide to the attainment of the best in interprofessional conduct and practice.
The interests of the patient/client are primary. Physicians and attorneys should communicate with each other on behalf of those interests. This Code should be used as a primary instrument to facilitate this communication.
The Code promotes courtesy between professions as well as considerations of time demands and expense demands by each profession to the other. Guidelines within the Code suggest general roles of each profession and will help clarify who is responsible for communication on specific subject matters. For instance, the contents of medical records, and generating medical reports, are primarily the physician's role. On the other hand, the scheduling of conferences, depositions, the use of a physician as a witness, or the issuance of subpoenas are primarily the attorney's role.
While this Code is not intended to be binding in character or create a standard of care applicable to both professions, it is hoped that every physician and attorney practicing in Tennessee will abide by the spirit as well as the letter of the principles.
County medical societies and bar associations are strongly urged to implement these standards by adapting them to local situations.
Suggested form of Authorization
I, ______________________, hereby authorize and direct_________________________, my attorneys, to pay, from the proceeds of any recovery in my case, to Dr._________________________ a reasonable amount for professional services in the treatment of injuries sustained by me and/or my spouse and/or my child or children, as the case may be, in an accident which occurred on ________________,19__, said payment to include professional services heretofore rendered and those rendered to the time of the settlement or other disposition of my case for the treatment of said injuries, and fees for reports, conferences, depositions and/or testifying in court.
I understand that this, in no way, relieves me of my personal responsibility to pay all such medical charges.
I further authorize said physician to furnish my said attorneys with any reports requested in reference to my injury, arising out of an accident on ________________________(date) and to allow them to inspect and copy any records, charts, papers or documents pertaining to my medical history and treatment in connection with such injury.