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socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 38899
Experience:  Retired (mostly)
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This is Family Law Attorney If a doctor has been legally

Customer Question

This is for CA Family Law Attorney
If a doctor has been legally served with subpoena to provide medical records, can the opposing counsel write a letter to that doctor ordering said doctor not to respond because said case is in pending litigation. This is in a divorce action in which Petitioner believes that respondent is not as sick or has other illness that is not life threatening. Opposing attorney has sent letter, and doctor has not complied with the subpoena
Submitted: 1 year ago.
Category: Family Law
Expert:  socrateaser replied 1 year ago.


First, the other contributor who answered you is not, to my knowledge, licensed to practice law in California. So, if you are requiring an answer from a California attorney, then you may want to "opt out" the other contributor, and wait for someone else from California to answer.

That said, California has very special requirements concerning the release of records which are inherently confidential, such as medical records. Also, the rules are slightly different where the subpoena requires a nonparty witness (e.g., physician) to produce records at a hearing or trial, as opposed to production prior to trial (i.e., during the discovery phase of the case). In either circumstance, the person sending the subpoena must provide special notice to the party whose records are being subpoenaed, and give that party an opportunity to object to the production. Code Civ. Proc. §§ 2020.510(c), 1985.3(e).

The other party must then file a motion to quash the subpoena, in order to avoid production of the subpoenaed documents.

If this does not occur, then the subpoenaing party has the option of either filing a motion to compel production, a motion for contempt, or a separate civil action to recover $500 plus direct damages for the failure to comply.

So, the basic answer is that the records must be produced -- however, physicians generally are able to assert doctor-patient privilege, and that could permit the physician to avoid sanctions for failure to comply.

Concerning opposing counsel's letter, that could be viewed as an obstruction of a court order -- or it could be an attempt to avoid an unlawful production of the subpoenaed records, on grounds that the subpoena is not in compliance with the special notification rules.

As you can see, the answer is not nearly as simple as it may appear.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

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