Health care providers as fact witnesses: They aren’t on call for lawsuits

While a potential medical malpractice lawsuit may be a physician’s or nurse’s biggest legal worry, far more common is a call via subpoena or informal request to serve as a non-party witness in a personal injury lawsuit, whether it be over a motor vehicle accident, a slip and fall, or another health care provider’s malpractice.

Realizing that oneself is merely a witness in someone else’s dispute may bring a wave of relief after the initial shock of seeing a court document, but there are several issues that non-party health care providers, attorneys for the parties to the lawsuit and attorneys for non-party health care providers should be aware of when issuing or responding to a witness subpoena so that everyone’s time and resources are used efficiently.

Relevant law

While no one wants to be called to court on a moment’s notice, Virginia law dictates that subpoenas need be served only five calendar days prior to the proceeding, whether deposition or trial.

Furthermore, service within five calendar days of the proceeding is not fatal to the subpoena, allowing a court to “after considering all of the circumstances, refuse to enforce the subpoena for lack of adequate notice.” (Va. Code Ann. § 8.01-407(A).

Also worth noting is that this code section explicitly states that § 8.01-271.1 applies to subpoenas issued, meaning an attorney should be sure the basis for the subpoena is “well grounded in fact” and “not interposed for any improper purpose, such as to harass or to cause unnecessary delay….”

Other than this five-day requirement for service of subpoenas, there are no other notice requirements for non-party witnesses. Virginia Supreme Court Rule 4:5 requires that all parties be given “reasonable” notice of any deposition, but no such notice is required for the non-party witness himself. (Va. Sup. Ct. R. 4:5(b)(1).)

Rule 4:5(a)(ii) does state that “a deposition of a non-party witness must be taken in the county or city where the non-party witness resides, is employed, or has a principal place of business; at a place upon which the witness and the parties to the litigation agree; or at a place that the court may, for good cause, designate.”

Attorneys should be aware of this potential pitfall when issuing subpoenas in circumstances where prior cooperation has not been obtained and health care providers should be aware of this potential argument to quash a subpoena served at the last minute and poised to interfere with patient care due to extended travel time to the location.

Most importantly, two different rules exist to ease the burden for those obtaining and those providing testimony — Rule 4:7 and Rule 1:27.

Rule 4:7 permits the use of a provider’s deposition testimony at trial for any purpose if the provider is a treating provider of any party. (Va. Sup. Ct. R. 4:7(a)(4)(E).) This applies regardless of whether the provider is available for trial (Thornton v. Glazer, 271 Va. 566, 570, 628 S.E.2d 327, 328 (2006)), and whether the provider is offering expert testimony, so considerations of the impact of a live witness at trial aside, scheduling a deposition of a provider to use in lieu of live trial testimony is an attorney’s most reliable way of obtaining needed testimony. Additionally, it may result in a friendlier and more helpful witness than one who has cancelled patients or a day of work due to a last-minute subpoena requiring availability for a half or full day of trial.

Rule 1:27, promulgated January 2020 and coincidentally adopted March 2020 at the start of the pandemic, allows for live virtual trial testimony by providers upon order of court, an order which the court “should enter” per the Rule. (Va. Sup. Ct. R. 1:27(c)(2)(ii).) Notably, this rule includes nurse practitioners and physician’s assistants in the category of healthcare providers to whom it applies, whereas Rule 4:7, created prior to the widespread use of NPs and PAs, does not. Furthermore, while the rule lays out various factors regarding the nature of the testimony a court should consider when allowing virtual testimony at trial, such consideration is not required for virtual testimony from treating provider witnesses. (Va. Sup. Ct. R. 1:27(d).) (“Where neither subparts (c)(1) or (c)(2) of this Rule apply….”)

While this still means a provider may have to be available for a non-trivial window of time the day of trial, he or she should consult with his or her own attorney if represented or the attorney who issued the subpoena to see if a window of time for probable testimony can be established so patient visits or entire work shifts do not need to be cancelled.

However, attorneys for parties other than whom the provider treated are prohibited from speaking with a party’s provider other than through an employee or agent and only for minor issues such as scheduling, so communication may need to be very limited. (Va. Code Ann. § 8.01-399(D)(3).)

Attorneys should note that: 1) while obtaining virtual testimony of a treating provider requires leave of court it does not require the consent of all parties and the rule suggests leave “should” be given; 2) the rule explicitly states that it is the responsibility of the party obtaining virtual testimony to ensure both the courtroom and the location of the witness are properly set up for such testimony and that failure to do so will preclude the offering of such testimony and will not constitute grounds for a continuance. (Va. Sup. Ct. R. 1:27(f).)

While the rule appears clear on its face, case law is nonexistent given its recent adoption and attorneys are advised to proceed with caution under the rule given that technical issues deemed self-inflicted, a determination that may be difficult to parse out in practice, are not grounds for a continuance and a provider’s testimony is often essential to a party’s case.

Arranging the testimony

Perhaps as important the law governing how provider testimony is obtained are the practical steps to obtain cooperation from the provider in the instance of trial testimony or testimony under Rule 4:7.

Sending a written request for testimony well in advance of trial that contains the trial date is advisable. Ideally providers will contact the attorney immediately if he or she is not available on that date, but email and letters both can be lost in the shuffle of a busy medical practice. Confirmation of availability in writing is ideal.

While in certain instances a party may not want to tip its hand by issuing a witness subpoena to a provider serving only as a fact witness much in advance of trial, attorneys should weigh this benefit against the risk that the provider will not be available on the day of trial and the deadline for obtaining testimony under Rule 4:7 may have passed.

Judges do not like to hear eve-of-trial disputes over provider testimony when the testimony could have been arranged earlier even if it would have resulted in added expense, revelation of strategy or loss of a tactical advantage by the party seeking the testimony. Hearings on these issues typically have little case law to govern and devolve into essentially finger pointing and a determination of what party has the best-kept file.

And as referenced above, a provider who isn’t uncertain about his or her attendance at trial and whose time away from patients has been minimized is likely to give more favorable testimony — an intangible consideration that may be difficult to quantify but could make the difference in a party’s case.

Michael Essig is an attorney with Hancock, Daniel & Johnson, P.C., practicing medical malpractice defense, insurance coverage, and general litigation.