Our firm would like to depose some of the doctors at the VA who treated a veteran. When contact was made with the VA hospital to get the dates when those doctors were available, the VA informed our firm that we 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 the doctors administered.
So the nightmare began.
Imagine walking in a hospital maze trying to find someone willing to show you how to get out. You walk down one dead-end and you’re told to turn around, walk 100 feet, take the left door down to level 3A and ask for Lucifer. You do and he smugly tells you that you need a Form 113306 but his office doesn’t have the forms and he sends you to the up five flights of stairs, turn right, then down a long corridor until you come to the New Wing, where you will then take the hallway to the left and then the last door on the right where you need to ask Beelzebub for Form 113306. Oh no! You were supposed to have produced a release in order to get Form 1133606!
You wake up. Thank God, it was only a nightmare!
Then you get to work and realize that you have to make a request for medical records and schedule the deposition of healthcare employees of the Veteran’s Administration.
Under federal law, may the VA compel our 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.
…and so the REAL nightmare maze begins.
Yes, the Veterans Administration is the epitome of worst of government bureaucracy. Getting information from them has to be one of the most exhausting and infuriating recent process of practicing law.
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. (this is where you will want to move on to another blog post about a celebrity’s cat if you aren’t really interested in details).
“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.
8 C.F.R. 14.800 – 810 governs the testimony of department personnel and production of department records in legal proceedings.
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 we, as 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).
What happens if the VA just ignores you?
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 with the most important ones for our case bolded:
The need to avoid spending time and money of U. S. for private purposes;
How the testimony or production of records would assist the VA;
Whether the disclosure of records or presentation of testimony is necessary to prevent fraud or other injustice;
Whether the demand or request is unduly burdensome;
Whether compliance with the request or demand is necessary under the rules of procedure governing the case;
Whether compliance with the request or demand would violate some law;
Whether the testimony or records would reveal classified information;
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;
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;
Not wanting to appear that the VA or Federal government is endorsing or supporting a position advocated by a party;
The need to prevent the public’s possible misconstruction of variances between personal opinions of VA personnel and VA or Federal policy;
The need to minimize VA’s possible involvement in issues unrelated to its mission;
Whether the demand or request is within the authority of the party making it;
Whether the demand or request is sufficiently specific to be answered;
Are you having fun yet?
The criteria listed in section 14.804 obviously provide the VA broad discretion in whether to comply with a Touhy request. The good news is that Kimberly Rich informed me that they almost always comply with Touhy requests.
But wait….there is MORE!
5 U.S.C.A. § 552a(b) says, “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be – … (11) pursuant to the order of a court of competent jurisdiction…”
It would appear from this statute that a subpoena would allow the depositions to be compelled without the veteran’s consent. Clearly, the statute allows a subpoena to trump the VA’s insistence on getting a signed release from the patient.
In Robinett v. State Farm Mut. Auto. Ins. Co., 83 F. App’x 638, 639 (5th Cir. 2003), the Fifth Circuit Court of Appeals held that the VA did not violate a patient’s right by disclosing medical records pursuant to a state court order, when that patient did not give prior written consent. The court citied paragraph (11) in 5 U.S.C.A. § 552a(b), giving the VA the authority to disclose the medical records.
Are you just completely exhausted? We actually have 14 page legal memoranda on the subject on how to obtain medical records and depose healthcare providers employed by the Veteran’s Administration, which includes that amount of time that each deponent can be deposed! Believe me, when you’re dealing with VA, you want to know at the least the generalities of the regulations and ways to get around them!
If our detailed memorandum, procedural steps and forms can help to you, please give us a call. We are glad to share, but please be sure to update your own research because we are NOT giving legal advice.