Breaking Up Is Hard to Do: Physicians Can Get Subpoenaed in Divorce Cases
By Joey Berlin Texas Medicine March 2019

March_19_TM_Law

Testifying as a physician in a divorce case might not be as high-stakes as testifying in a medical negligence case. But one divorce case that Houston pediatrician James Allison, MD, participated in several years ago showed him you just never know what’s going to happen.

Dr. Allison knew going into the deposition that the divorcing parents disagreed on whether to vaccinate their child; the father was in favor, the mother was not. What he couldn’t anticipate was how that dispute would play out during his testimony.

“The mother’s attorney insisted on reading from the Physician’s Desk Reference (PDR) every adverse reaction that could happen for each and every vaccine. Then he would ask me to say whether I agreed or disagreed with each,” he recalled.

That line of questioning went on for four hours.

“After the deposition was over, I told that lawyer, ‘I think this is the biggest abuse of process I have ever seen and the most ridiculous hearing I’ve ever been involved in.’ The PDR is the PDR, and it says what it says, and we all read it. But to read a list of potential adverse reactions to vaccines, implying that they should not be given, is both preposterous and a waste of everyone’s time.”

Physicians subpoenaed to participate in a divorce case, whether to testify or simply to supply medical records to the court, likely won’t find themselves at the center of a circus like that one. But there are certain things they should know if they get called into the middle of what could be an acrimonious split.

“Oftentimes I’m working with a physician that’s maybe never confronted this situation before, and is a little bit uncertain about the legalities,” said Robert Hoffman, a Houston divorce attorney. “They want to do the right thing, but they don’t want to violate any rules or lean unfairly towards one party or the other in a contested matter.”

Susan Myres, also a Houston divorce attorney, adds physicians often can play a key role in helping courts thoroughly examine a divorce. Courts look to them for information a judge or jury might need to reach a fair resolution.

Short notice

Physicians can be called on in any type of divorce case, including those involving a child — where the fitness of one or both parents may be under scrutiny — or a split where spousal abuse is at issue. Ms. Myres says there’s even a rising trend in divorces between elderly people, with “people that have been married 40 years coming into our offices going, ‘I am not dying next to him.’” She predicts that particular wave of divorces will bring new challenges to the parties’ mental competence, which means how older patients present in their doctor’s office could become an issue in the courts.

A subpoena for testimony can come without warning, Dr. Allison says. Any legal request gets doctors’ attention and makes them anxious, he says, and when they see how quickly the court asks them to appear, it’s disconcerting.

“Out of the blue, you receive a subpoena to appear in court tomorrow at 9 am, or the day after tomorrow. [You’ll think], ‘Oh my, I have a schedule full of patients tomorrow. I can’t do this,’” he said.

But one thing he’s learned — as Ms. Myres confirms — is that a subpoena with a short turnaround doesn’t have to upend your practice. She says you can file paperwork objecting to the requested time and place, and the physician’s office often can work with attorneys in the case to make other arrangements.

“If a doctor can say, ‘Look, I cannot be there on Wednesday, I have three surgeries lined up, and I’ve got hospital duty. … But I could come testify on Thursday afternoon anytime after 2.’ That kind of courtesy goes a long way not just with the lawyers, but with the judge,” said Ms. Myres, president-elect of the American Academy of Matrimonial Lawyers.

Like a request to testify, a subpoena for records also can come on extremely short notice — and before you’ve had a chance, per HIPAA, to get the proper consent from your patients to make their records part of the case.

Again, there’s no reason to fret; Ms. Myres says you can claim physician-patient confidentiality and file an objection to the place and time, which will give you time to try to obtain the proper privacy release. An attorney can help you draft those form templates so they’re ready to go when you get a court order, Ms. Myres says. Sometimes, if the request originates with attorneys who handle divorce cases a lot, the physician will receive a HIPAA form attached with the request for documents.

“You have a right to go, ‘Look, you can’t give me three days’ notice.’ Because under normal circumstances, you’re entitled to maybe 15 days if it’s [a request] from a patient,” she said.

Stay composed, stay impartial

Prior to testifying, it’s beneficial to consult with an attorney who can walk physicians through the basics, Mr. Hoffman says. That might be the attorney who’s called you to testify or one whom you know. A family law attorney can take a physician through the general rules of testifying, facts of the case, and questions you might hear. 

Mr. Hoffman says he’s seen physicians on the stand “squirming a bit about whether this course of treatment was taken versus another, or how the mom and the dad related to [that] decisionmaking. It can be an uncomfortable situation.”

Plus, caught unaware, physicians’ style of medical note-taking in the office also can make their testimony awkward once those notes become part of an open court proceeding.

“I’ve seen doctors … really put between the crosshairs in terms of the contents of what’s in the notes, and something might be said that they never dreamed would show up in the light of day,” Mr. Hoffman said. For example, if a physician’s notes have documentation of a parent’s behavior or demeanor when he or she brought the child in for an exam, the parent might get “quite mad and angry that there was such a notation in the notes.”

Some basic rules for taking the stand: Make sure you understand the question, answer that question only, and don’t volunteer information you’re not asked about, Mr. Hoffman says.

And when the medical care of a child is at issue, Dr. Allison advises physicians stick to reading and explaining what’s in their records. The physician shouldn’t become a partisan in a dispute that the parents are having, “unless you truly feel that one parent would not be an appropriate custodian of the child,” he says.

“Sometimes one party will to try to enlist you in making the claim that the other spouse is not taking care of the child’s medical needs, not following through with medical recommendations, or not giving prescribed medicines,” Dr. Allison said. “Or they may come to your office and say, ‘Johnny came back from his father’s on Sunday night with this new bruise.’ Well, kids get bruises. It doesn’t mean his father is abusing him.

“Or an attorney may ask ‘How about this visit on this day?’ Again, read your notes, explain anything that needs explaining, answer any specific questions you are asked about the visit, then be quiet.”

A judge could also appoint a physician as a medical “tiebreaker” if the parents don’t agree on whether their child should undergo an invasive medical procedure, which Mr. Hoffman says can be typical in divorce agreements.

Lawyers can help

For physicians, participation in divorce cases comes down to hiring an attorney they can consult, not only for haggling deadlines for records submission or testimony, but also for possibly heading off harassment.

In one case Mr. Hoffman uses as an example, a father he represented was in favor of his child receiving attention deficit disorder medication. The mother disagreed. Mr. Hoffman says a psychiatrist was caught “so much in the middle” of the case that she engaged her own lawyer, who was instrumental in taking the heat off the psychiatrist as the mother worked to get the doctor kicked off the case.

“The mom was peppering the doctor left and right with emails, and wanting to have after-hour visits, and questioning the doctor’s integrity, and saying that she was improperly siding with my client, and was ignoring all sorts of alternatives that could have been explored prior to medication,” Mr. Hoffman said. “The lawyer helped negotiate the timing of when the doctor would testify in the proceeding — because the doctor, like most doctors, was busy and had a busy schedule — and was instrumental in keeping the doctor from being subpoenaed and having to come to court and just sit on the benches all day long and wait for her turn to be called.”

 

Tex Med. 2019;115(3):30-33
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Last Updated On

March 11, 2019

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Joey Berlin

Associate Editor

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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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