routinely requests three copies of the patient's clinical records and the following additional information from the treating PHS facility: 1. The beneficiary status of the patient. 2. Any information of which the facility may have knowledge, or a statement as to the lack of such knowledge, concerning medical treatment that the patient may have received from physicians and facilities other than Public Health Service physicians and facilities. 3. The names and addresses of all present and former employees having knowledge of the treatment and care of the patient. 4. A statement whether there was any insurance in force covering the liability of the Government or any of the PHS personnel involved. 5. A statement as to whether it appears that a claim in favor of the United States has arisen from the circumstances upon which the suit is based. The prescribed procedures further specify that a narrative summary shall be prepared by a medical officer, after reviewing the complaint and the patient's clinical records, such summary to include a chronological résumé of the care and treatment afforded the patient and a discussion of the allegations of the complaint. In addition, the prescribed procedures call for obtaining signed statements, where practicable, from all personnel who have first-hand knowledge concerning the matter in suit. The greater the care exercised in the preparation of these summaries, the more value they will have in preparation of the Government's defense in the suit. The clinical records, statements of witnesses, and other data gathered by the PHS Board of Claims, are forwarded to the Office of the General Counsel, DHEW, for legal analysis and review. Following this, the investigation report is prepared and sent to the Department of Justice and to the appropriate U.S. Attorney for direct handling. Within the Department of Health, Education, and Welfare, the Office of the General Counsel is the point of liaison on all subsequent phases of the litigation. SEC. 2 TESTIMONY OF PHS PERSONNEL 196 In discussing the procedures relating to the giving of testimony and appearance at trial by PHS personnel, care must be taken to distinguish between suits in which the Government is a party (such 196 Testimony is the statement of a witness, under oath or affirmation, given as evidence in a judicial proceeding. as a malpractice suit under the FTCA) and suits in which the Government is not a party to the litigation, since the pertinent Departmental policies vary, depending upon whether the Government is or is not involved in the litigation." 197 (a) Government Litigation 198 As noted earlier in Section 1(a), once a malpractice suit is commenced, the U.S. Attorney is in charge of the defense of the suit on behalf of the Government, and he will alert the necessary PHS personnel of the need for their testimony, either by way of deposition, or at the trial of the case. Ordinarily, he will contact the medical officer in charge and advise exactly whose testimony will be needed, and when, and where.199 In view of the interest of the Service in these cases, the PHS personnel concerned should cooperate fully with the U.S. Attorney. In a malpractice case involving PHS medical care, the likelihood of a PHS employee being served with a subpoena 200 to appear on behalf of the plaintiff is extremely remote, but nevertheless possible. The applicable procedure provides that upon the receipt of a subpoena or judicial order requiring his testimony or the production of official PHS records, the Service employee must immediately make 197 It should be noted that the regulations and policies of the PHS governing disclosure of information, response to subpoenas, and the furnishing of expert testimony, do not apply to PHS consultants whose services are provided under contract. Nevertheless, consultants should be instructed to refer all requests for information concerning PHS beneficiaries to the medical officer in charge, and to inform the medical officer in charge when their appearance is requested or compelled by subpoena in private litigation. 198 A deposition is the testimony of a witness, under oath or affirmation, not given in open court, for subsequent introduction in evidence in a judicial proceeding. 199 A subpoena is not ordinarily served by the U.S. Attorney on a PHS employee whose testimony is necessary in a malpractice case due to his participation in the medical treatment in question. Arrangements for the employee's appearance to testify are generally made directly by the U.S. Attorney with the medical officer in charge and the PHS employee involved, with approval from PHS Headquarters. 200 A subpoena is a writ or court order directed to a person, and commanding his attendance to testify in a judicial proceeding at a particular time and place. The refusal to so attend may constitute ground for issuance of a citation for contempt of the court out of which the subpoena was issued. A subpoena duces tecum is a writ or court order commanding not only the attendance of the person in court, but requiring that he bring with him books, records, or documents in his possession, for purposes of elucidating the subject matter of the suit. a report of the service of the subpoena,201 through the medical officer in charge to the appropriate DHEW Regional Attorney, who will be responsible for contacting the office of the U.S. Attorney in the field to whom the case has been assigned. A telephone report shall also be made by the medical officer in charge to the appropriate division chief, through the Legislative Legal Liaison Officer, BMS. The latter is responsible for contacting the Office of the General Counsel, DHEW, and for relaying pertinent instructions to the field. An employee of the Service who voluntarily testifies for the plaintiff in a suit against the Government under the FTCA may subject himself to criminal prosecution under 18 U.S.C. 283, which prohibits Government employees from assisting in the prosecution of claims against the United States.202 This prohibition would not apply, however, to testimony compelled by the plaintiff pursuant to a properly served subpoena. In all such cases, the procedure described in paragraph (b) below shall be followed meticulously. (b) Private Litigation There may be instances in which the testimony of a PHS employee is requested or compelled in a malpractice suit (or other litigation) not involving the United States, perhaps because of the employee's reputation in a specialized field of medicine.203 In these cases, extreme caution must be exercised by the employee involved, in order to avoid any possible conflict with current Departmental policies and procedures. Present PHS policy prohibits the voluntary testimony of a Service employee in purely private litigation,20* and the requesting party 201 This report should include the precise date and title of the subpoena, the name of the issuing court, the name and title of the person whose signature appears on the document, the nature of the information sought to be disclosed or produced, and any other information known about the case which might prove helpful. 202 See United States v. 679.19 Acres of Land, 113 F. Supp. 590 (D. N. Dak., 1953); United States v. Adams, 115 F. Supp. 731 (D. N. Dak. 1953). 203 A PHS physician may have treated a present or former patient of the Service and the physician's testimony may be sought either as an ordinary witness or an expert. In the latter case, he may (if properly qualified) not only testify as to what he did, but may offer his opinion that what he did constituted good medical practice. See caveat in the text, however, concerning testimony relating to patients of the Service. 204 See DHEW General Administration Manual, Ch. PHS:23-10-50. 205 should be so advised. On the other hand, where the PHS employee is served with a subpoena to testify in private litigation, he should report the details thereof through the medical officer in charge to the appropriate HEW Regional Attorney, who will advise on the legality of the subpoena and how to proceed. There is no policy prohibiting the employee's testimony where he is served with a subpoena; however, if the testimony sought relates to clinical information concerning a present or former patient, the responding employee is required by section 1.106 of PHS regulations (Title 42, Code of Federal Regulations, Sec. 1.106) to call attention to the Service's regulations on confidentiality of clinical information, and to decline to produce records or disclose information inconsistent therewith. The full text of the PHS regulations regarding disclosure of information may be found in Appendix A. (c) Confidentiality of Clinical Information The discharge by the PHS of its basic medical care responsibilities to beneficiaries entitled to such care by statute involves the establishment of the usual confidential relationship between a physician and his patient. Government medical care in no way differs from private medical care in this respect, for in the final analysis—whether treatment is by a private physician or a Government physician-a correct diagnosis must depend in substantial measure on the completeness and reliability of the information furnished to the physician by the patient. For this and other reasons, the PHS has long maintained a policy providing that information relating to diagnosis, care and treatment of patients of the Service shall be held confidential.206 As is usually the case with regard to broad policy statements, there are special exceptions noted in the PHS regulations concerning circumstances in which clinical information may be disclosed, and the reader is referred to the full text of the regulations in Appendix A for further amplification. 205 Any person properly served with a subpoena compelling his appearance to testify in court proceedings must attend trial, or he will be subject to contempt of court. Bradley v. Poole, 187 Va. 432, 47 S.E. 2d 341 (1948). 206 The confidentiality of clinical information relating to beneficiaries of the Service is established in 42 CFR § 1.102(b). See also 42 CFR § 35.11, quoted in note 182. Where suit has been brought against the United States for alleged malpractice in a PHS facility, testimony given by PHS employees concerning the treatment given does not violate the confidentiality requirements of the PHS regulations. The regulations permit disclosure "as necessary for the performance of the functions of the Service," and this would include the defense of a lawsuit involving the Service's medical care function.2 In any event, by bringing suit alleging negligence in his medical treatment, the plaintiff is generally deemed to have waived any right to the confidentiality of his medical record. SEC. 3 MISCELLANEOUS ADMINISTRATIVE MATTERS (a) Leave Status When a PHS employee's testimony is necessary in litigation in which the Government is a party, he is deemed to be in duty or pay status while thus engaged. Where his testimony is compelled by subpoena in private litigation, and the value of his testimony is based upon information acquired by him in his official capacity, and he is subpoenaed to testify or produce records for that reason, he may be regarded as in duty or pay status while so testifying. 208 A PHS employee who testifies in private litigation concerning matters unrelated to his PHS employment must take annual leave or leave without pay whether he testifies voluntarily or in response to a properly served subpoena. 209 (b) Payment of Travel Expenses and Per Diem The Comptroller General has ruled that before the Government can pay the travel expenses of an employee subpoenaed to testify in litigation, the employee must appear on behalf of the United States.210 Thus, when a PHS commissioned officer is called as a witness to 207 Opinion, HEW General Counsel, Jan. 5, 1956 (Becker to Montgomery). 209 15 Comp. Gen. 196. See also Opinion, HEW General Counsel to Regional Director, Denver, Feb. 2, 1950. |