Ethics Opinions

Obtaining Medical Records

 

Opinion rules that a defense lawyer may suggest that the records custodian of plaintiff's medical record deliver the medical record to the lawyer's office in lieu of an appearance at a noticed deposition provided the plaintiff's lawyer consents.

 

Inquiry:

 

Plaintiff sustained severe facial injuries as a result of a single-vehicle automobile accident which occurred while Plaintiff was riding as a guest passenger in Defendant's automobile. The claim was not settled and suit was filed by Plaintiff's counsel, Attorney P.

 

Attorney D, counsel for Defendant, served the medical records custodians at the offices of Plaintiff's various treating physicians with notices of deposition. Attached to each deposition notice was a subpoena duces tecum requiring each records custodian to produce at the scheduled deposition a complete copy of Plaintiff's medical record. With each notice of deposition and subpoena was a letter from Attorney D advising the recipient that "in lieu of attendance at the deposition, a complete copy of the entire file on Plaintiff may be mailed to Attorney D's offices." The letter contained a list of documents to be mailed to Attorney D. Attorney P was unaware that the depositions were scheduled until he was served with copies of the notices. Plaintiff had not executed an authorization for Attorney D or Defendant to obtain her medical records.

 

Several of the medical records custodians mailed Attorney D copies of Plaintiff's medical records. Attorney D mailed copies of these medical records to Attorney P.

 

Is it appropriate for a lawyer to obtain medical records in this manner?

 

Opinion:

 

RPC 236 provides that it is unethical for a lawyer to mislead the custodian of documentary evidence as to the lawyer's authority to require the production of documents. See Rule 8.4(c) of the Revised Rules of Professional Conduct. A lawyer may obtain medical records in the manner described in this inquiry only if there is an agreement between the lawyers to waive the deposition and allow the medical records custodian to deliver the medical records directly to the opposing lawyer. See generally RPC 180 (after case is called for trial and physician is subpoenaed as witness, defense counsel may accept medical records in mail from physician) and Rule 45(c) of the North Carolina Rules of Civil Procedure.