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 Touhyregulations.

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 Touhyregulations 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 wouldinterfere 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).
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.

Thank you government for the bureaucracy associated with getting medical information. Can you imagine what it will be like when the federal government takes over private health care? What a mess.

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




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