Is There an Easy Way to Obtain Records and Depose Doctors from the Veteran's Administration? Short Answer: No.

Although the Veterans Administration has fallen under recent scrutiny for the backlog of patients to be seen, those of us the private practice of law have long been frustrated with the process of obtaining medical records from the Veterans Administration.

 

Does anyone know of streamlined method to obtain the medical records? From my perspective, it takes months to get the records and then we often do not get all of the records. If you want to depose a VA doctor, you can plan on there being even more delay.

 

Suppose your firm would like to depose some of the doctors at the VA who treated a plaintiff. When contact was made with the VA hospital to get the dates when those doctors were available, the VA informs your firm that you would first have to seek approval for the depositions from the VA’s general counsel and that he would likely require the plaintiff to sign a release allowing the doctors to give their depositions regarding the treatment.

 

Under federal law, may the VA compel your firm to first obtain and produce to the VA a release from the plaintiff/patient before being allowed to depose the doctors who treated the patient?

 

The question presented does not have a definitive answer. Combining the regulations 38 C.F.R. 14.809 with 38 C.F.R. 1.511, it could be determined that the VA Hospital has both authority and a duty to get a patient’s consent before the VA produces doctors for a deposition regarding that patient. But it is not clear that the requirements found in 38 C.F.R. 1.511, which require consent from the patient, are applicable to depositions, and there is no language found in 38 C.F.R. 14.800 et seq. that would require the VA to receive consent from the patient before producing a doctor for a deposition.

 

The answer to the question presented starts with what is referred to as Touhy regulations.

Touhy regulations

“Pursuant to 5 U.S.C.A. § 301, executive branch agencies may prescribe regulations for their own internal governance, conduct of business, record keeping, and document custody. Such regulations are commonly known as “housekeeping” regulations, and do not authorize the agency to withhold information from the public. Housekeeping regulations that create agency procedures for responding to subpoenas are often termed “Touhy regulations,” in reference to the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). In Touhy the Court ruled that agency employees may not be held in contempt for refusing to answer a subpoena, if prohibited from responding by a superior.” COMSAT Corp. v. Nat'l Sci. Found., 190 F.3d 269, 272 n. 3 (4th Cir. 1999) (describing the origin of the term “Touhy regulations”).

 

Touhy regulations have been enacted by many U.S. departments including the VA Hospital. “The VA has promulgated Touhy regulations governing its employees' testimony.”  CCA of Tennessee, LLC v. Dep't of Veterans Affairs, 09CV2442 WQH CAB, 2010 WL 1734953 (S.D. Cal. Apr. 27, 2010), citing 38 C.F.R. § 14.800–14.810.

 

38 C.F.R. 14.800 – 810 governs the testimony of department personnel and production of department records in legal proceedings.

 

In CCA, a federal district court was asked by the defendant, CCA, in a state court action to review CCA’s Touhy request to the VA to produce for a deposition the doctor of the plaintiff in the state court case.  The VA refused the Touhy request, which prompted CCA to file suit in federal court under the APA.  The court in CCA, found that the VA was allowed to deny the request to depose the VA doctor under reasons provided in 38 C.F.R. 14.804. The court held in favor of the VA and granted the VA summary judgment.

 

 

Section 14.805 sets out the contents of the demand or request made to the VA. “The request or demand for testimony or production of documents shall set forth in, or be accompanied by, an affidavit, or if that is not feasible, in, or accompanied by, a written statement by the party seeking the testimony or records or by the party’s attorney, a summary of the nature and relevance of the testimony or records sought in the legal proceedings containing sufficient information for the responsible VA official to determine whether VA personnel should be allowed to testify or records should be produced. Where the materials are considered insufficient to make the determination as described in § 14.807, the responsible VA official may ask the requester to provide additional information.”

 

Nothing in section 14.805 mentions consent is necessary by the applicable patient for his medical records to be released or for doctors to provide testimony about the treatment of the patient. The only requirement shown in section 14.805 is that attorneys of a party  provide a written statement summarizing the nature and relevance of the testimony requested.

 

In simple bullet point fashion that means we need to:

 

·         Request the deposition in writing

·         Tell how the deposition is relevant and needed (summary of the relevance of the testimony)

·         Provide the topics which the deposition will cover (covers the nature of the testimony).

 

Section 14.802(a) defines “demand”  as an “Order, subpoena, or other demand of a court of competent jurisdiction, or other specific authority or under color of law, for the production, disclosure, or release of VA information or records or for the appearance and testimony of VA personnel as witnesses.”

 

Section 14.802(b) defines “request” as “Any informal request, by whatever method, from a party, a party’s attorney, or any person acting on behalf of a party, for the production of VA records or information or for the testimony of VA personnel as witnesses, which has not been ordered by a court of competent jurisdiction or other specific authority or under color of law.”

 

Section 14.802(f) defines “testimony” as “testimony in any form, including personal appearances in court, depositions, recorded interviews, telephonic, televised or videotaped testimony or any response during discovery or similar proceedings, which response would involve more than the production of records.”

 

Section 14.807(e) provides the procedure followed by the VA if a court denies the VA’s request for a stay on requests or demands. “If a court of competent jurisdiction or other appropriate authority declines to stay the effect of the demand or request in response to action taken pursuant to § 14.807(d), or if such court or other authority orders that the demand or request be complied with notwithstanding the final decision of the appropriate VA official, the VA personnel upon whom the demand or request was made shall notify the responsible VA official of such ruling or order. If the responsible VA official determines that no further legal review of or challenge to the ruling or order will be sought, the affected VA personnel shall comply with the demand, order or request. If directed by the appropriate VA official after consultation with the appropriate United States Attorney’s office, however, the affected VA personnel shall respectfully decline to comply with the demand, request or order.”

 

In other words, if the court does not award the VA a stay when it requests a stay, the VA personnel is required to provide the testimony or records… unless the appropriate VA official instructs them not to. Basically, the VA does what it wants.

 

 

Section 14.804 provides the factors the VA personnel consider when deciding whether to comply with a request to produce someone for a deposition or for records.  Those factors may be summarized as follows:

Isn't it About Time Defendants Fight Back With Sanctions Motions for Frivolous Claims? Whoa! That May Not Happen!

"It seems like the same lawyers are the ones filing frivolous lawsuits over and over, and judges are not enforcing the sanctions available to discourage this practice."

Louisiana Code of Civil Procedure Article 863(B) states that:

"pleadings must be signed by a party to certify that (1) the pleading  is not being presented for any improper purpose, such as to  harass, cause unnecessary delay or needlessly increase the cost of  litigation; (2) each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a non-frivolous  argument for the extension, modification, or reversal of  existing law; (3) each allegation or other factual assertion in  the pleading has evidentiary support or, for a specifically  identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation  or discovery." La. C.C. P. Art. 863(B)(1)(2)(3). (2011)

In Harrison v. McNeese State University, the Third Circuit Court upheld a Calcasieu trial court’s imposition of sanctions against a pro se litigant-student, determining that the sanctions were proper and reasonable. Harrison v. McNeese State University, 635 So.2d 318 (La. App. 3 Cir. 1994). In Harrison, a student filed suit against a university following a suspension for refusing to remove pornographic material from his class assignment at his instructor’s request. Id. Harrison sued the university for refusing to refund his tuition and fees, falsely arresting him at the University library, issuing a slanderous grade report of all "Fs" when the correct graded should have been "Ws" and violating his freedom of expression. Id. The case proceeded to trial and his action was dismissed. Id Subsequently, the University brought an action for sanctions against Harrison for filing frivolous pleadings and failing to present any evidence to support his claims. Id. The trial court imposed $6,845.45 in attorney’s fees, and the appellate court upheld this award, opining the following:

"The obligation imposed upon litigants and their counsel who

sign a pleading is to make an objectively reasonable inquiry

into the facts and law. Subjective good faith will not satisfy the

duty of reasonable inquiry. By choosing to represent himself,

a party assumes the responsibility of familiarizing himself with

applicable procedural and substantive law. His failure to do so

does not give him any greater rights than a litigant represented

by an attorney." Id.

 

 
  

As reported in the Louisiana Lawsuit Abuse Watch in October 2012,  candidates to the Louisiana Supreme Court acknowledged  abusive lawsuits are a problem in Louisiana's courts.

 

Jeff Hughes, Tim Kelley and Bill Morvant, were asked  in response to a survey by Louisiana Lawsuit Abuse Watch. When asked whether or not frivolous lawsuits and excessive damage awards are a problem in our courtrooms, candidate Morvant said, "I do think we see a fairly high number of suits that either should not have been filed or should have been resolved without litigation (amount in controversy does not justify the litigation expenses)."

 

Responding to the question of whether or not Louisiana's civil justice system adequately deters and penalizes frivolous litigation, Morvant said, "We presently have in place La. CCP art. 863 that empowers the court to sanction a party or counsel (plaintiff or defendant) for conduct that violates its provisions. This includes improper or baseless pleadings. However, courts are very reluctant to impose sanctions except in extreme cases."

 

Candidate Hughes agreed. "It seems like the same lawyers are the ones filing frivolous lawsuits over and over, and judges are not enforcing the sanctions available to discourage this practice."

 

Candidate Kelley also agreed. "Without question frivolous lawsuits and excessive judgments are a problem in our courtrooms," Kelley responded. "I do not feel that Louisiana's civil justice system adequately deters and penalizes frivolous lawsuits," he continued.

 

Also, a recent survey conducted by the American Tort Reform Association and Sick of Lawsuits found most Americans agreed with these candidates, with a strong majority-89 percent-saying they believe lawsuit abuse is a "problem."

 

This view was shared across the political spectrum, with 94 percent of Republicans, 89 percent of Independents and 86 percent of Democrats all in agreement. Candidate Jeffrey L. Sanford, however, disagreed when responding to the LLAW survey. When asked whether or not frivolous lawsuits and excessive damage awards are a problem in our courtrooms, candidate Sanford said, "No. I can't think of a case where a frivolous judgment was granted or upheld on appeal. Nor can I think of an  excessive award."

 

LLAW is a non-partisan, non-profit legal watchdog organization that represents more than 5,000 citizens and small businesses across the state. LLAW is now using the surveys to educate its supporters and voters across the state.

 

What do you think? Do we do enough to counter claim when there are obviously abusive and frivolous claims filed?

 

Share your thoughts.

Update: Carmack Amendment May Preempt/Dismiss State Law Claims of Bodily Injury

As recently shared by Beata Shapiro at the Transportation Logistics Counsel Annual conference:

 

Liability: A motor carrier providing transportation services is liable to a shipper for damage or loss to cargo. The liability imposed is for the actual loss or injury to the property. See 49 U.S.C. 14706(a).

 

 

Preemption: Federal preemption is the doctrine that federal law precludes and prevents the application of contrary state law. Courts consistently hold that the remedies provided by the Carmack Amendment preempt state law claims against a carrier for loss or damage to interstate shipments, such as negligence, breach of contract, and state consumer protection laws. See Smith v. United Parcel Service, 296 F.3d 1244, 1246 (11th Cir. 2002); York v. Day Transfer Co., 525 F. Supp. 2d 289, 297-98 (D. R.I. 2007). Some courts have even precluded personal injury claims arising out of transportation services based on the Carmack Amendment.

 

York v. Williams Moving Company, 525 F. Supp. 2d 289 (D. R.I. 2007)

- Plaintiffs’ personal property suffered mold damage when stored during transport.

- Plaintiffs’ alleged, among other injuries, physical injuries and emotion pain and suffering due to the delivery of moldy property. 

- Defendants moved for summary judgment. The court held that these damages were preempted by the Carmack Amendment because "such damages stem directly from the shipment and delivery of their goods…."

 

 

Alessandra v. Mullen Bros., 1999 Mass. Super. Lexis 399 (Mass. Super. 1999)

- Defendant moved Plaintiff’s property from her home into a warehouse. Plaintiff's property was exposed to pesticides while in storage. Defendant then transported the property to Plaintiff’s new residence.

- Plaintiff claimed the pesticides caused her to have a physical reaction requiring medication attention.

- The court dismissed all of Plaintiff’s state law claims, even those alleging bodily injury, because of Carmack Amendment preemption.

 

Glass v. Crimmins Transfer Co., 299 F. Supp. 2d 878 (C.D. Ill. 2004)

- Defendants stored Plaintiffs’ personal property during a move. The property developed mold and fungus.

- Plaintiffs filed suit against Defendants seeking compensation for their property damage, emotional distress, and physical injury. They brought claims for breach of contract, fraudulent concealment, negligence, and Carmack Amendment damages.

- The court granted Defendants’ motion for summary judgment finding that Plaintiffs’ state law claims, including those alleging personal injuries and emotional distress, were preempted by the Carmack Amendment.

 

Moffit v. Bekins Van Lines Co., 6 F.3d 305 (5th Cir. 1993)

- Defendant transported Plaintiffs’ household goods. Plaintiffs wanted delivery before Christmas. Defendant did not deliver the goods on time.

- Plaintiffs brought suit alleging claims of outrage, intentional and negligent emotional distress, breach of contract, breach of an implied warranty, breach of an express warranty, a violation of the Texas Deceptive Trade Practices Act, slander, misrepresentation, fraud, negligence, and violation of obligations as a common carrier.

- Defendant moved for summary judgment. The court granted the motion holding that the Carmack Amendment preempted all of Plaintiffs’ state law claims.

 

As you can see all of these claims arise out of damages associated with the delivery of the cargo, which the Carmack Amendment focuses. In the circumstances when a plaintiff is making a claim for injuries related to a vehicular accident, the Carmack preemption would likely NOT apply to have the bodily injury claims dismissed. Yet, when someone claims an injury due to mold or falling cargo or failure to timely deliver cargo, then you may have basis to dismiss the bodily injury claims and remove the matter to federal court because of federal preemption.

 

But there are still cases that don't go our way on the issue.