Interprofessional Code for Physicians and Attorneys

The provisions of the Code have been prepared and are intended as guides to assist members of the medical and legal profession in their increasing mutual, professional association. As the knowledge and services of both professions are required so that the rights of individuals may be appropriately determined before various tribunals, it is deemed advantageous at this time to join in a common effort to develop a voluntary compact between physicians and attorneys. An interprofessional code should clarify and delineate the uncommon language and common problems and communicate to both the medical and legal professionals the manner in which each can best serve the public and secure to its citizens in the best medical and legal services obtainable.

The provisions of the Code are not laws, but reasoned rules of conduct for members of the two professions, subject to the principles of medical and legal ethics and rules of law prescribed for their individual conduct. However, it will serve its purpose if it promotes the public welfare, improves the practical working relationships of the two professions, and facilitates the administration of justice.

1. The law provides that a party to a law suit may be required to undergo a medical examination by agreement of the opposing attorneys or under a court order. (Trial Rule 35)

2 . When an appointment is made for the medical examination of a person, the physician sets aside a part of this day for that purpose. It is, therefore, important that attorneys exert their best efforts to insure that such appointments are kept. The attorney for the party to be examined should give explicit instructions to such party that the physician must be notified in ample time should it become impossible for the party to keep the appointment.

1. The scope of an examination may be limited by the agreement of the attorneys or the court order. The attorney has the obligation of notifying the doctor of any such restoration.

2. Subject to the above limitation, the physician may take history and perform such examinations as may be advisable in his judgment to formulate an informed opinion regarding the nature and extent of the party’s medical condition.

3. Inquires should not be made into matters not reasonably related to the legitimate scope of the medical examination and the physician who is so requested should decline to do so.

A. The Attorney

1. Requests for medical records from a physician should be tendered within a reasonable time in advance of the need for the information.

2. The physician shall release medical information only to attorneys who are authorized to receive some by a signed patient Authorization complying with the requirements of IC $ 16-4-8-1; et seq. It shall be presumed that a patient Authorization presented by an attorney representing a party adverse to the patient was obtained with the knowledge of the patient’s attorney.
iii. The forgoing subsection notwithstanding, an attorney who is unable to obtain a patient’s Authorization may, after suit is filed, and pursuant to Trial Rule 34 of the Indiana Rules of Procedure, subpoena medical records from the physician.

B. The Physician

1. Medical Records – The physician should keep adequate records of pertinent information regarding the patient’s medical history, diagnosis, prognosis and treatment.

2. Requests for medical reports should be honored promptly. Undue delay in providing medical reports or bills bearing on a patient’s legal rights may prejudice his case.

3. If a physician is unable to make a complete medical evaluation within the time required, he should notify the attorney. In this event, a preliminary report clearly designed as such may serve the attorney’s needs until a complete evaluation can be rendered.

4. Content of Report – The general content of the report should include as minimal information, and when applicable, the following:

a. History received of injury and injury-producing event.
b . Relevant prior medical history and/or preexisting condition.
c . Patient’s complaints.
d . Nature and extent of injury.
e . Diagnosis including description and comment reference pertinent diagnostic tests and X-ray studies, in any.
f . Description of treatment rendered including all surgeries, if any, and all medications administered or prescribed, stating purpose of same.
g . The prognosis, if now known, including future pain, functional impairment, limitation in activities, or any residual condition.
h . The names of other treating or consulting physician.

A. Physician – Patient Privilege

In bodily injury law suits, the usual obligation of confidence in the physician-patient relationship does not exist, where testimony is given or documents are produced under court order, subpoena or by stipulation of counsel.

B. Deposition Defined

A deposition is an official proceeding authorized by law where by a person, such as a physician, may be required to give testimony and be cross-examined under oath outside of court before an official court reporter and in the presence of attorney representing the parties involved in the law suit. The physician may be required to produce pertinent medical records at the deposition hearing. Also, he may be requested to release the records to the court reporter for duplication.

C. Time and Place

The time and place of the deposition should be set by agreement with the physician. Unless there is a compelling reason to the contrary, if should be taken at the physician’s office.

D. Subpoenas

If the deposition of the physician cannot be set by agreement, the physician’s attendance can be required by subpoena. If any doubt arises as to the effect of any subpoena, the physician should consult his attorney.

E. Subpoenas – Medical Records

Production of medical records may also be required by subpoena served on the physician or the custodian of his records. If so, the records must not be delivered or disclosed to the process server. The subpoena requires the person to attend the deposition at the time and place stated in the subpoena , and then to produce the specified records. It is improper for a process server to obtain possession of subpoenaed records; it may be necessary for the physician to attend the deposition hearing described in the subpoena if the medical records are surrendered for copying or otherwise.

F. If Attendance at Deposition a Hardship

If the time and place described in the subpoena for the deposition hearing creates a hardship, the physician should immediately bring this fact to the attention of the attorney causing him to be deposed and the attorneys for both parties should cooperate with the physician to reschedule the deposition at a time more convenient to all parties involved.

In most cases a conference between the attorney calling him as a witness and the physician is not only desirable, but should result in material benefit for both the attorney and the physician. Conferences should be held at a time and place mutually convenient to the parties. Both parties to confer should be cognizant of demands on the other’s time and should be prompt. At such pre-trial conferences the attorney and physician would expect to discuss any and all questions which the attorney anticipates asking the physician in court, as well as all aspects of the physician’s diagnosis, treatment and prognosis for the patient. It is important that both the attorney and physician be completely candid with each other so that there will be no surprise at the trial. It is entirely proper for the attorney to point out the kind of medical evidence he needs to establish his case and the reason for it, but this does not excuse an attorney who attempts to shape the physician’s testimony. It must be remembered that any improperly presented medical testimony is almost always a bilateral product and one that is professionally unworthy of both the physician and the attorney. The physician is neither a party to the litigation nor an advocate for anyone, but is called on in court to testify as the details of his diagnosis, treatment and prognosis of a patient or to express an expert opinion based upon his professional judgment and his own conscience, which must mark the limit of this testimony, including his opinion.

Further, attorneys should not unilaterally call or contact an opposing counsel’s examining, treating or specially employed physician for the purpose of obtaining a medical opinion on a pending case.

A. Subpoenas for Trial

Some attorneys will not subpoena a physician they expect to call as a witness, preferring to make personal arrangements with the physician and relying upon his promise to appear. A physician should not take offense at being served with a subpoena. Attorneys subpoena medical witnesses because:

1. It may be desirable, in a particular case, for the physician to be skilled to testify, if asked, that he appears in court pursuant to subpoena; or

2. It may be essential in order to secure a continuance if for any reason the physician fails to appear as required.

Under court rules and statutes in the State of Indiana, an attorney is required to subpoena the physician as a witness if the attorney wishes to make the physician’s appearance mandatory.

B. Recommend Policy Regarding Physician’s Appearance

1. When possible the attorney should make arrangements with the physician regarding the time the physician will be called to testify; and the attorney should always give the physician as much advance notice as possible of trial dates and all continuances.

2. Recognizing the time problems of the medical profession, judges and attorneys should make every effort to avoid unnecessary inconveniences for the physician. Notwithstanding, the physician’s testimony may not occur on schedule. The process of law and the time of other individuals must also be respected by the physician.

C. Duty to Testify

1. 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. There is no question as to the obligation of the physician to respond to a subpoena, just as any other citizen, except where a grave emergency prevents his doing so. The physician assumes the risk, including contempt, of convincing the court that the emergency was of sufficient gravity to justify his ignoring the order of the court.

2. The attending physician, when appearing as a witness, should normally provide itemized bills for his medical services, and there should be addresses of the patient. Charges for the conference, depositions and testifying in court should be addressed to the attorney.

3 . The treating physician, then testifying as his patient, must offer the facts of his diagnosis, treatment and his prognosis. He should not indulge in speculation unless the case unavoidably requires it, and then be must clearly label his own testimony speculative. Under these circumstances a medical witness is not justified in either suppressing evidence or taking sides.

4. To make his professional testimony clear, both for the record and for the jury and attorneys of both sides, testimony of a medical witness should not just express his findings and opinions in medical terms. He should also put these into intelligible lay language. Members of the jury, unlike professionally trained listeners, are not expert in interpreting the medical vocabulary. The medical witness should remember that his testimony is intended to explain. If it does not explain, it has failed in the sense that is was not useful in the determination of the case.

5. No attorney is justified in abusing or badgering any witness, including a physician. Established rules of evidence give ample opportunity for testing the completeness or credibility of the medical witness and make unnecessary or unjustifiable recourse to any of the above devices on the part of the cross-examining attorney. If he feels aggrieved, the physician should inquire of the person conducting the hearing whether he is required to submit to such treatment.

1. The Attending Physician and His Charge for Services in Connections with Litigation.

It is proper, and not unusual, for an attorney to represent a client on a contingent fee basis. This client may not be in a position to pay for the legal services unless he prevails in the litigation. The medical profession neither has nor seeks any comparable arrangement. It is perfectly proper for a physician to charge a fee for his time. Fees should take into consideration conference, preparation of reports required or requested, travel costs and witness appearance.

2. The Attorney and His Direct Payment of Medical Fees.

By his standard of ethics, an attorney cannot maintain a suit or do anything to stir up stride or litigation. The question frequently arises whether he may advance costs of litigation on behalf of his client. He may do so ethically when the advances constitute a charge to the client and collectability is not contingent upon the outcome of the case. On behalf of his client and as a charge to his client, the attorney may pay the physician for services related to the development of the client’s legal position, but not for services related to the usual medical treatment. A specific understanding should be reached between the attorney and the doctor as to each individual case. The fees should be reasonable an in line with the services rendered, and expert witness fees are subject to review by the court.

3. Reasonableness of Fees

The physician is not expected to donate his time in litigation matters but is entitled to reasonable compensation. However, physician fees for pre-trial conferences, depositions, medical reports and court time should be reasonably related to time spent by the physician. It should be remembered that ultimately such expenses will be borne by the patient.

4. Cooperation by Attorney to Secure Physician’s Payment

The physician must understand that the attorney cannot guarantee payment of the patient’s financial obligation to the physician. The attorney should do everything reasonably possible to protect the payment of fees for the services rendered by the physician in the matter in which he is concerned; however, he is not a guarantor of payment. However, the physician need not agree to be an expert unless satisfactory arrangements can be made regarding fees.

Each of the professions has a duty to develop an enlightened and tolerant understanding of the other. The aims of the two professions are essentially parallel in their services to society. The public must be considered first, and it is the public’s interest that must be uppermost in all cases. Each profession must remember that individual practitioners vary in capacities and characteristics and that, while law and medicine may be termed science, each is an inexact science and such inexactness is, and always will be, accentuated by the human limitations of its practitioners.