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

Michael Essig

Michael Essig

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.

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