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:
a)
The
need to avoid spending time and money of U. S. for private purposes;
b)
How
the testimony or production of records would assist the VA;
c) Whether the
disclosure of records or presentation of testimony is necessary to prevent
fraud or other injustice;
d)
Whether
the demand or request is unduly burdensome;
e)
Whether
compliance with the request or demand is necessary under the rules of procedure
governing the case;
f)
Whether
compliance with the request or demand would violate some law;
g)
Whether
the testimony or records would reveal classified information;
h)
Whether the
testimony would
interfere with law enforcement proceedings, compromise constitutional rights,
compromise national security interests, hamper VA or private health care
research activities, reveal sensitive
patient or beneficiary information, interfere with patient care, disclose
trade secrets or other confidential information;
i) Whether
such release or testimony could be reasonably expected to result in the
appearance of the VA or Federal government favoring one litigant over another;
j) Not
wanting to appear that the VA or Federal government is endorsing or supporting
a position advocated by a party;
k)
The
need to prevent the public’s possible misconstruction of variances between
personal opinions of VA personnel and VA or Federal policy;
l)
The
need to minimize VA’s possible involvement in issues unrelated to its mission;
m)
Whether
the demand or request is within the authority of the party making it;
n)
Whether the
demand or request is sufficiently specific to be answered;
o)
Other
matters.
The
criteria listed in section 14.804 obviously provide the VA broad discretion in
whether to comply with a Touhy request.
With all of the negative publicity the VA is now getting due to the many deaths in Phoenix and other areas from delay in treatment, we believe there will be more difficulties in obtaining records and deposing medical doctors.
If the CFR is found to apply to depositions and
it is valid, then in the matter at issue, the next inquiry would be
whether the “government is involved.” In other words, is the government a party to the litigation?
If
for some reason, it is determined that the matter “involves the
government,” then the proper paragraph in 38 C.F.R. § 1.511 to proceed under is
either paragraph (b) or (c), depending on whether it is a suit in federal court
or state court. Assuming the lawsuit is in state court,paragraph (c)
would be the applicable paragraph. A
court order would be necessary and a simple subpoena would not suffice
according to the regulation according to 38 C.F.R. § 1.511 (c) (1) and (2), that is even if you were able to obtain
written consent from the patient under 38 C.F.R. § 1.511(c)(3)(i).
If
the plaintiff/patient does not give consent, then the “Regional Counsel having jurisdiction
must determine whether the disclosure of the records is necessary to prevent
the perpetration of fraud or other injustice in the matter in question.” 38
C.F.R. § 1.511(c)(3)(ii).
It
is possible that General Counsel for the VA will require a court order under in accordance
with 38 C.F.R. § 1.511(c) if he determines that the government is “involved.”
If he determines the government is not involved, he will likely only
require the plaintiff's release under 38 C.F.R. § 1.511(e). If
a court order is required, it “should be addressed to either the Secretary of
Veterans Affairs or to the head of the field facility at which the records
desired are located.” 38 C.F.R. § 1.511(a)(1).
Summary
The requirements stated by the local office of the General Counsel for the Veteran's Administration are consistent
with the requirements of 38 C.F.R. 14:800 et
seq. combined with 38 C.F.R. 1.511(e). You may simply:
·
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)
·
Provide
written consent by Sgt. Fike to depose his doctors.
Of
course, should the Office of Regional Counsel decide that your request is
insufficient, he may request more information before complying with the request
under the last sentence of 38 C.F.R. 14:805.
I hope this tome is helpful, but if you want more details on how to proceed with obtaining the records/depositions from the Veteran's Administration, Kyle McGuire and I have a 14 page white paper on the subject.
Best wishes and call us if we can ever be of assistance.
Mark Perkins
Perkins & Associates, LLC
318-222-2426
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