Doctors May Have To Supply Records Or Even Testify In A Patient’s Divorce Case: What To Do?

This article was prepared by Robert S. Hoffman, board-certified family law attorney, who has been practicing for 31 years in Houston, and Jennie R. Smith, an attorney in the Law Office of Robert S. Hoffman, PLLC. Website

Most physicians would assume that the patient/physician relationship is protected by law and may not be breached, even during a high-conflict divorce involving a patient.  And aren’t patient records protected by HIPAA privacy regulations anyway?

Despite these legal protections, under certain circumstances, a doctor may be required to provide medical records or to testify in a divorce case and/or child custody battle, and there may not be any way to avoid this unpleasant task.  In Texas, exceptions to evidentiary rules may waive privilege in child custody litigation and in divorces where physical or mental health is at issue. The doctor may be ordered to submit medical records and possibly testify during the trial of a case.

How might this happen?  Let’s suppose that a child who is the longtime patient of a particular pediatrician is caught in the middle of a high-conflict divorce and custody battle.  Medical issues that can become part of a divorce case may range from something as apparently simple as bedwetting to very serious medical conditions such as rheumatoid arthritis, cancer, diabetes or sickle-cell anemia.  

Perhaps the parents disagree as to whether and when the child should receive routine vaccinations.  Perhaps the child has allergies and one parent is skeptical of “allergies” and therefore less careful than the other in making sure that the child does not consume food that might cause an adverse reaction.  The list of possible issues that can become bones of contention in a divorce is endless, depending on the medical circumstances of the child.

If the parents cannot agree on how to make medical decisions involving the child, the judge will issue an order determining which parent has the primary right to make invasive medical decisions for the child.  In some cases, the doctor may even be appointed the “tiebreaker” between the parents in making important medical decisions without the doctor having been previously apprised or consulted regarding serving in this capacity.

Talk therapy records may also be subpoenaed, and psychologists or counselors may also be required to testify at a deposition and/or in court as to the mental condition of a child or an adult in a case.

It is also possible that entirely apart from medical records, a doctor may be asked to testify about factors which impact a child’s best interest such as which parent most often brought the child or children to medical appointments and/or complied with medical directives.  

When a doctor’s medical records are subpoenaed as part of a divorce case and he or she is requested or subpoenaed to testify, the first thing he should do is consult an attorney to determine how best to meet these demands.  There could even be a potential liability for the doctor if he or she allows a parent to make medical decisions who has not been assigned that responsibility by the court or if the doctor takes some action that could be considered a violation of a parent’s rights in the matter.

To begin with, the doctor should ask a lawyer to determine whether a request for documents is overly broad.  Must he or she comply? With which parts of the request? Or should the doctor perhaps seek an order of protection from the court?  A lawyer can also advise the doctor as to how to obtain appropriately signed waivers before turning over private medical records to anyone.  And no doctor should ever give a deposition without his or her lawyer present.

Bottom line: doctors face a number of potential landmines when treating a child of divorce or a party to a divorce or custody case.  Just as preventive care is the first line of defense in health care, being informed and proactive is a physician’s best defense when facing a legal matter.

This article offers general legal information not pertaining to specific, individual circumstances.  No attorney-client relationship is formed with readers.

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