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Medico-Legal Guidelines
Medico-Legal Guidelines
Revised December 2005
**To Download the Medico-Legal Guidelines in its entirety in PDF format, click here**. (42 pages)
Preamble--History, Revisions, Physician & Attorney Complaints
Introduction
Specific Regulations
Definitions--for Physician, Medical Record, Medical Report, Independent Medical Examination, Medical Witness
Specific Situations--Medical Records, Consultation & Testimony
Trial Situations--Subpoenas, Notice for Trial, Medical Witnesses
Joint Committee of NC Medical Society And NC Bar Association
Appendices
Preamble
History Leading to the Proposed Revision of the NC Medico-Legal Code
Since the adoption of the original Medico-Legal Code by the North Carolina Bar Association and North Carolina Medical Society in 1956, the environment in which the physician and lawyer interact has changed radically. With the introduction of standard rules of civil procedure and evidence, the broad bounds of contact between attorney, witnesses, and parties were defined. Adoption and subsequent revision of Rules of Professional Conduct further defined the lawyer's ethical conduct and served as a guide in contact with physicians. Physicians, largely unfamiliar with these legal rules and guides, reacted only within the boundaries of professional respect, dignity, decorum, and the ethical principles of their health care profession. With the rise in importance and frequency of medical litigation, the professions have scrutinized attorney and physician conduct and have reached a consensus that there is a need to revise their inter-professional code. The Code was previously revised in 1972, 1986, and 1991 in attempts to update the original 1956 Code. The 1991 version as called "The Medico-Legal Guidelines of North Carolina" (the term "Guidelines" as used hereafter refers to all such versions as well as this document).
Recent Revisions
In 1997, the Joint Committee of the North Carolina Medical Society and North Carolina Bar Association decided the Guidelines should be updated for two reasons.¹ First, the practices of medicine and law had changed dramatically since 1991.² Second, the Guidelines had not been effective in resolving certain recurring disputes between physicians and attorneys.3 Significant revisions were made, and finally, in 2000, the Medical Society and the Bar Association adopted the 2000 Medico-Legal Guidelines.
More recently, the Medico-Legal Liaison Committee updated the Guidelines to incorporate HIPAA privacy regulations and update other cited authorities. The 2005 Medico-Legal Guidelines are the product of this latest endeavor.
Physician Complaints
Physicians complain about attorney misuse of subpoena power and failure to pay expert witness fees of both treating and retained medical expert witnesses. In the case of treating physicians, this complaint arises often when the physician testifies pursuant to subpoena and without a fee agreement with the subpoenaing attorney, and the subpoenaing party does not prevail at trial.4
Physicians complain that they are uncertain of their legal duties in certain areas. Physicians are frequently confused about the duties attendant to their release of confidential medical information. They are not certain as to when they may, may not, and when they must release confidential medical records or speak with an attorney about a patient. They are often unsure about what services to bill for, whom to bill, and how to ensure payment resulting from services rendered in legal cases involving medical issues. They complain that they receive conflicting responses from lawyers regarding their duties and rights.5
Treating physicians, who may be potential defendants in professional liability litigation, complain that attorneys investigating those claims mislead them. The climate of inter-professional mistrust created in the professional liability context invades all areas of litigation.
Attorney Complaints
Attorneys complain that physicians fail to comply with subpoenas for their records or presence as a witness, that they fail to provide complete medical records, and that they bill excessively for medical records, consultation and testimony. Attorneys also complain that treating physicians refuse or are reluctant to consult with their patient's attorney or to provide live testimony on behalf of their patient. These areas of conflict cause problems for patients and attorneys, who of necessity rely on medical evidence in cases involving medical factual issues.
Scope
Throughout its history, the scope of various versions of the Guidelines was limited to physician-attorney interactions. The Guidelines did not apply to other health care professionals, and also did not apply to a physician who was a party-defendant in a malpractice action. The Guidelines did not distinguish between treating and non-treating medical expert witnesses. The Guidelines did not complement and did not reference specific rules of conduct required by laws or regulations in areas such as workers' compensation, criminal prosecutions, or cases involving drug and alcohol abuse medical records. The newly adopted Guidelines have made some changes in these areas.
Professional Liability
Historically, the Guidelines have not addressed the interaction between attorneys and physicians who are defendants in professional liability actions. This relationship is governed by mandatory statutes, rules of ethics, and rules of procedure, and is not appropriately a subject of these Guidelines. However, these Guidelines seek to clarify duties arising in those situations where the physician is not a party-defendant but the legal action is based on a claim of professional negligence made by a person treated or evaluated by the physician.6 The Guidelines address some of the recurring concerns in this difficult area.
Treating Versus Non-Treating Witnesses
In earlier editions, the Guidelines did not always distinguish between physicians who were retained expert medical opinion witnesses and those medical witnesses who were fact witnesses by virtue of treating the attorney's client as a patient. The relationship between a physician who is a retained expert and an attorney is voluntary and reciprocal, and fee arrangements between them are business agreements restricted only by prevailing law and their professional guidelines of ethics. By contrast, interactions between treating physicians and patient's attorneys are not chosen, arising instead from their respective connections and duties to their mutual patient/client. The Guidelines, recognizing this distinction, preclude retained experts and attorneys from invoking the assistance of the Joint Committee in fee disputes arising between them.
I. INTRODUCTION
The North Carolina Medico-Legal Guidelines are the product of collaboration between the North Carolina Medical Society and North Carolina Bar Association. The Guidelines are the end-product of decades of cooperation between physicians and lawyers aimed at improving their inter-professional interactions in medical litigation.
The relationship between a physician and an attorney should be based upon mutual respect, courtesy, and understanding. Medical testimony is generally indispensable in legal cases to prove or disprove the nature or extent of injuries or other legally relevant medical conditions. Therefore, when accepting a patient, a physician also accepts the incidental obligation to cooperate in any legal proceedings in which the patient may become involved.7 When attorneys make inappropriate or inconsiderate demands on physicians, they cause animosity between the professions. Without mutual cooperation by physicians and attorneys, their patients/clients become the unfortunate victim of professional ill will.
To promote inter-professional cooperation and courtesy, the particular responsibilities of physicians and attorneys should be more clearly defined. These Guidelines set out these responsibilities, citing legal and/or medical authority where applicable. These Guidelines are not exclusive, nor do they cover all situations or seek to define the outer limits of professional interrelationships. The Guidelines establish minimum standards for those relationships and encourage civility between the professions.
II. SPECIFIC REGULATIONS
These Guidelines are not intended to supplant any mandatory rules, laws or regulations. Mandatory rules (for example the Rules of Professional Conduct governing attorney behavior, the North Carolina Rules of Civil Procedure governing court procedure, and the North Carolina Rules of Evidence governing the admissibility of evidence in court proceedings), statutes, and regulations take precedence over these Guidelines. Some relevant citation to applicable rules, laws, professional codes and position statements, and/or regulations are contained in the text of these Guidelines.
III. DEFINITIONS
The following definitions apply throughout these Guidelines:
A. "Physician" Defined: A physician is a person licensed to practice medicine by the North Carolina Medical Board as that term has historically been understood, i.e., medical and osteopathic physicians.8 The Guidelines also cover a physician assistant licensed by the North Carolina Medical Board.
B. "Medical Record" Defined: The medical record is a collection of protected health information for a particular individual, that: is created or received by a physician or other health care provider; relates to the past, present, or future physical or mental health or condition of the individual; and includes information about the provision of health care to that individual and the past, present, or future payments by or on behalf of that individual for the provision of health care.9 Medical records are inherently sensitive and personal and contain information that relates to an individual's physical or mental condition, medical history, medical diagnosis, or medical treatment,10 as well as demographic and other information that identifies or has the potential to identify the individual (e.g., patient name, address, social security number, unique identifier, etc.).11
C. "Medical Report" Defined: A medical report is a report generated by a physician at the request of an attorney in order to assist the attorney in preparing for litigation which involves a patient's medical condition, treatment, or prognosis. A medical report may be a narrative summary of the medical record, or it may be a response to requests for expert opinions regarding the patient's condition, treatment, or prognosis not contained in the medical record. The preparation of a medical report may, in some instances, require the physician to obtain a current evaluation of the patient.12
D. "Independent Medical Examination" Defined: An independent medical examination is a medical examination in which a person is required or agrees to submit to a medical examination by a physician selected or approved by a court, administrative agency or other adjudicatory body or by the mutual agreement of the parties.13
E. "Medical Witness" Defined: A medical witness is a physician who provides testimony concerning one or more medical issues involved in a lawsuit or claim.14 Three types of medical witnesses are recognized by the N.C. Medico-Legal Guidelines.15 They are:
- "Retained Expert Witness" Defined: A retained expert witness is a physician who has been retained by one of the parties to litigation to provide expert opinion testimony or evidence concerning one or more medical issues involved in the lawsuit or claim.
- "Fact Expert Witness" Defined: A fact expert witness is a physician who is called upon to testify or provide evidence because they have treated a patient who is a party or witness in a lawsuit or claim.
- "Independent Expert Witness" Defined: An independent expert witness is a physician who has been selected or approved by a court, administrative agency or other adjudicatory body or by the mutual agreement of the parties to perform an independent medical examination.
IV. SPECIFIC SITUATIONS
A. Medical Records
- Ownership of Medical Records
Usually, records made or collected by or at the direction of a physician in connection with the treatment and evaluation of a patient are maintained and retained by the physician, hospital or other individual or institutional care giver. The original record is deemed to be the property of the physician, hospital, or other individual or institutional care giver. The patient has a qualified right to say who may receive information contained in the record. 16
- Inspection and Copying of Medical Records
- Required Authorization
An original medical record should not be removed from the possession of a physician, hospital, or other individual or institutional care giver except upon court order, but the original should be available for inspection or copying with proper written authorization.17 Proper written authorization is to be provided by the patient, an individual empowered by law to act in the patient’s behalf regarding disclosure of medical records, or by order of a court or administrative agency having jurisdiction and authority to mandate such disclosure.18
- Permissible Charges for Copying Medical Records
In personal injury liability and social security disability cases, permissible charges for copies of medical records are governed by N.C. Gen. Stat. 90-411. Further, in personal injury liability cases, a physician may not charge for copies of medical records requested by a patient's attorney if they wish to preserve a lien for their medical services against the patient's recovery of monetary damages for personal injury from a third party.19 In workers' compensation cases, permissible charges for copies of medical records are governed by N.C. Gen. Stat. § 97-26.1 (2005).20 In social security disability cases, see 20 C.F.R. §§ 404.1514 and 416.914 (2005), and N.C.. Gen Stat. § 90-411 (2005). In other circumstances, a physician may charge a reasonable fee for copies of medical records.21
- Withholding Records where Patient Account for Medical Services Not Paid
A physician may not refuse to provide copies of medical records (including the bill for services provided to the patient) on the ground that the patient has not paid the amount due on his account for medical and other services.22
- Requesting Medical Records or a Medical Report From a Treating Physician
- Notice
An attorney should give a patient's treating physician reasonable notice of the need for inspection and copying of medical records, or of the need for preparation of a medical report. The notice should clearly specify the information requested. Notice may be provided by written correspondence, or by a subpoena, and should be accompanied by appropriate authorization to release the information requested.
- Authorization
Proper authorization is necessary before a physician can release medical information. No attorney should request and no physician should furnish any medical information concerning the history, physical or mental examination, condition, diagnosis or prognosis of a patient except with the written consent of the patient, the patient's authorized representative, a judicial or administrative order, or in conformity with other applicable legal authority.23 The scope of the authorization determines the scope of the inspection, release, copying or report. If the requesting attorney wants information beyond what is authorized to be released, the attorney must obtain additional authorization.
- Promptness
The physician, with proper authorization from the patient or the patient's authorized representative, should promptly furnish the attorney with a complete medical record or medical report. Delay in providing the medical record or medical information may prejudice the opportunity of the patient to settle their claim or lawsuit, may delay the trial of a case, or may cause additional expense or the loss of important testimony.24
- Special Considerations for Substance Abuse Diagnosis and Treatment Records and for Psychotherapy Notes
Under federal and state law, information about an individual's substance abuse, diagnosis or treatment can be a trap for the unwary litigator seeking this information, as well as for the physician or health care facility holding the information. Disclosure — and subsequent re-disclosure — of records generated at a federally-assisted drug or alcohol abuse facility is strictly prohibited by complex federal rules, with criminal penalties for violation.25 A subpoena alone is never sufficient to compel disclosure; the party seeking disclosure must provide either highly specific written consent from the patient which meets the requirements of the rules, or a court order framed in precise accord with the rules.26 Protected information includes any information about an individual, whether or not the information is in writing or recorded in some other form, and includes the patient's identity, address, medical or treatment information, and all communications by the patient to program staff.27 The facility is prohibited from even acknowledging whether the individual is or ever was a patient at the facility.28 Because of the complexity of the rules, the process for securing drug and alcohol abuse records and related testimony is excluded from the scope of these Guidelines.
In addition, HIPAA provides extra protections for psychotherapy notes.29 Specific authorization must be obtained for any use or disclosure of psychotherapy notes. For more information see 45 C.F.R. § 164.508(a)(2) (2004).
B. Consultation and Testimony
- Consultations
It is professional courtesy for physicians and lawyers to cooperate with one another and to abide by applicable statutes and rules so that the medical questions involved in controversies are fairly and adequately explored and presented. Where appropriate, a frank discussion between the patient's physician and the patient's attorney is helpful to give each a complete understanding of the medical and legal issues involved. When such a discussion occurs, their mutual patient/client benefits: time is saved, confusion is minimized (making settlement more likely), and inter-professional understanding is enhanced. To that end, the patient's physician(s) and attorney(s) should attempt, when appropriate, to discuss the medical questions prior to mediation, deposition, or trial.
However, patients' physicians may not communicate with an attorney or any other person about a patient's treatment, evaluation, or condition without the written authorization of the patient or the patient's authorized representative, or a court order, or other lawful authority.30
A physician has an obligation to consult with a patient's attorney if the patient has given them written consent to do so.31 However, this obligation to consult may be limited if the patient has, or may have, a potential malpractice claim against the physician. If a physician is unclear whether the obligation to consult with a patient's attorney may be limited, the physician is encouraged to consult with legal counsel for the North Carolina Medical Society, their own attorney, or ask the advice of their professional liability insurer.
An attorney investigating a potential professional liability claim should avoid misleading the physician regarding the physician's potential malpractice liability. Where the patient's attorney is investigating a specific physician's potential professional liability or reasonably foresees that the physician's actions may be the basis of a claim, the attorney has an obligation to so advise that physician.32
- Physician Deposition Testimony
Deposition testimony of a physician is sometimes necessary and is preferably arranged at a scheduled time in the physician's office.33 Depositions are necessary for one or more reasons: for discovery;34 to perpetuate testimony;35 or for later use instead of the physician's appearance at trial36. Physicians' appearance in court is usually the most effective way to present testimony. However, physicians cannot always be present in court, and sometimes their personal testimony may be of secondary value. Physicians should agree to videotaped depositions when requested. North Carolina Rules of Evidence and of Civil Procedure sometimes prohibit an attorney from using a deposition in state civil court. In those instances, the physician must appear in court to testify.37
V. TRIAL SITUATIONS
A. Subpoenas
- Witness Subpoenas
- North Carolina State Courts
Under North Carolina law, physicians, acting as medical witnesses38 are required to be subpoenaed before the Court may award them an expert witness fee after they have testified at a deposition or trial.39 Physicians should not attempt to avoid service of subpoenas.40
In issuing trial subpoenas to physicians, attorneys must be aware of the physician's patient scheduling needs. For that reason, the attorney should notify the physician by letter of the intent to subpoena the physician to trial. The trial subpoena itself should be issued as soon as practical, but in no event should a subpoena be issued later than seven days before trial. Only a rare emergency calls for later issuance of the subpoena.41 Where appropriate, the subpoena for attendance at the trial as a witness should reflect the actual time for the physician to appear and/or "will call when needed" or "on standby," if the actual time is uncertain. If the actual time is uncertain, the attorney or someone in the attorney’s office should keep the physician informed on a daily basis as to the status of the trial. An attorney has little or no control over scheduling a case.42 Accordingly, physicians should not necessarily alter the office schedule but should bear in mind the possibility of being called to court. At the same time, the attorney or someone in the attorney's office should keep the physician informed on a daily basis as to the status of the calendar. When a case is postponed or not reached during a court session, the attorney should immediately notify the physician. Physicians have continuing and often unpredictable responsibilities to their patients and, insofar as they are able, attorneys should make arrangements with a minimum of inconvenience or delay.
Court calendaring systems vary between judicial district43 in North Carolina. Under court calendaring rules in some judicial districts, a case will automatically reappear on a trial calendar if it has previously been postponed or not reached. The new trial session, and the case's position on the trial calendar, if known, should be relayed to the physician by letter as soon as possible. If for some reason the new trial week is inconvenient for the physician, they should notify the attorney immediately and in no event later than one week after notice of the new trial date.44
- Workers' Compensation Cases45
In workers' compensation cases, medical witnesses typically testify by deposition scheduled after lay testimony has been received. A party to a workers' compensation case must obtain permission from the Industrial Commission before a medical witness can offer live testimony. In those rare instances when physicians are subpoenaed, they will be on telephone standby until notified.
- Subpoenas for Medical Records
Often parties to a lawsuit will subpoena medical records to a trial without requesting the presence of the physician who made them. As in the case of trial subpoenas to physicians (see Section V.A.1. above), subpoenas for medical records should be issued as soon as possible, but in no event should a subpoena be issued later than seven days before trial. Only a rare emergency calls for later issuance of the subpoena.46 A physician's options in responding to a subpoena for medical records depends in part on who is subpoenaing the records, and on what authorization that person has to view the records. Subpoenas for medical records containing substance abuse and psychiatric information are outside the scope of these Guidelines and require special attention. See IV A. 4. above.
- Records Subpoenaed With Authorization and/or Pursuant to Court Order or Other Authority
If the party subpoenaing the medical record has the written consent of the patient or the patient's personal representative to inspect the records, or if the subpoena is accompanied by a judicial or administrative order, or is issued in conformity with other applicable legal authority the subpoena may be complied with in one of several ways. The custodian of the records may bring them to court and testify to their authenticity and completeness, or the records may be mailed to the presiding judge or their designee accompanied by an affidavit authenticating them signed by the medical record custodian.47 Only those medical records expressly authorized by the order should be released in accordance with the order.48
- Records Subpoenaed Without Authorization and Without Court Order or Other Authority
Medical records are often subpoenaed to North Carolina state courts by parties without authorization to inspect the records and without a court order requiring their disclosure.49 This happens often in personal injury cases, where defense attorneys routinely subpoena plaintiffs' medical records for a variety of legitimate reasons.50 The method of subpoenaing such records varies widely across the state. A party may properly subpoena medical records they lack authorization to inspect by stating in writing on the subpoena that the records are being subpoenaed by one without legal authority to inspect them, and who will not inspect them absent the written consent of the patient or the patient's personal representative or judicial or administrative order, or in conformity with other applicable legal authority.51
Prior to the release of medical records subpoenaed without authorization and without court order or other authority, it is imperative to make sure that the release of such information is permitted under HIPAA. HIPAA will not allow health care providers to release health information pursuant to a subpoena that is not accompanied by an order of court or administrative tribunal, unless the health care provider receives "satisfactory assurance" from the requesting party that reasonable efforts have been made to (1) provide notice to the person whose records are being requested or (2) secure a qualified protective order for the records. Each of these alternatives must meet the requirements enumerated in the HIPAA rules. In the absence of such "satisfactory assurances" from outside sources, the health care provider must make a reasonable effort to provide the notice or seek a qualified protective order sufficient to meet the requirements of the rule.
Also, before releasing medical records subpoenaed without authorization and without court order or other authority, a physician should receive one of the following:
- The patient's written authorization to release the information requested;
- A court order to release the requested information;
- A qualified protective order meeting the requirements of Section 164.512 (e);
- Evidence demonstrating that reasonable efforts have been made to provide written notice to the individual whose records are being requested, in accordance with the requirements of Section 164.512 (e)(1)(iii); or
- Evidence demonstrating that reasonable efforts have been made to secure a qualified protective order for the requested records, in accordance with the requirements of Section 164.512 (e)(1)(iv).
Absent one of the above, a written objection to the subpoena may be made on the grounds that compliance would be in violation of HIPAA Section 164.512(e). The objection must be (1) in writing, (2) delivered to the party or attorney designated in the subpoena and (3) made within 10 days after service of the subpoena or before the time specified for compliance if the time is less than 10 days after service.52
In the event of an objection or a question about compliance, records subpoenaed without authority may be placed in a sealed envelope addressed to the Judge presiding at the session of court to which the records have been subpoenaed, and marked: "To remain sealed until otherwise ordered by the presiding Judge."53
B. Notice for Trial
- Initial Trial Settings
It is imperative both from the standpoint of the efficient administration of justice and the physician's scheduling needs that fact expert witnesses receive as much notice as possible in the setting of a particular case for trial. Under present calendaring procedures in North Carolina state court civil actions, only the week for trial can be designated specifically. There can be no assurances as to when or if the case will be reached that particular week.
- Fact Expert Witness Availability
Once an attorney has first received notification that a trial is to be scheduled, they should contact their fact expert witnesses regarding availability for trial. At that time, the fact expert witness should inform the attorney of those weeks when they will not be available to testify. Once the case has received a definite trial setting, the attorney should immediately confirm the fact expert witness' availability for that particular week by letter.
- Final Trial Calendar
When a case appears on the final trial calendar for a particular week, the attorney should notify the fact expert witness regarding the calendaring of the case, its status on the calendar, and an estimate as to the day when the case will be reached. This should be confirmed in writing to the witness. If the fact expert witness has not already been subpoenaed, that should be done at this time.
- Court Appearance
The business of the courts cannot be governed by the convenience of witnesses, whoever they may be. However, court appearances interrupt medical witness' professional schedule and attorneys should make every reasonable effort to minimize that interruption. The attorney should not require medical witnesses to come in court and sit for long periods of time waiting to be put on the witness stand. The attorney should give the medical witness as much advance notice as is reasonably possible, so that their patient schedule may be rearranged with a minimum of disruption. The medical witness should be alerted by telephone a reasonable time before he or she is actually needed in court.
Medical witnesses are obligated to be in court at the time requested, and should notify the attorney of their arrival. Timing is important not only for the orderly presentation of the case, but also for the convenience of everyone involved in the proceedings. Physicians have ongoing and often unpredictable responsibilities to patients. In such instances, courtroom procedure should permit medical witnesses to testify out of order or at another time. When a medical emergency arises, attorneys should be notified immediately in order to make alternative arrangements and, if appropriate, to seek the court's release of the medical witness or postponement of the medical witness' appearance until the emergency has passed.
C. Medical Witnesses
- Generally
- Expert Status
As a medical witness, the physician's role is to provide information, not to advocate a position. The attorneys serve as the advocates. The medical witnesses, the court, and the attorneys should show mutual respect and consideration to each other.
In general, there are two types of witnesses—fact and expert. Expert witnesses, because they possess knowledge not generally known to the jury, are allowed to express opinions. In order to be an expert, it is necessary to know more than the jury knows and to have an opinion about the subject under inquiry. Evolving but unsettled law may require a more stringent standard. The presiding judge at trial may make an initial inquiry into the qualifications of a witness to testify and either permit or limit the testimony.
Because medical witnesses virtually always testify as experts, even when they may also be fact witnesses, the Guidelines treat all medical witnesses as expert witnesses, and differentiate between the types of expert medical witnesses.54 In order to be accepted as an expert in a trial in North Carolina state courts, the presiding judge must find that the witness has expertise.55
Treating physicians typically testify as hybrid fact-expert witnesses, because of their training and knowledge and by virtue of their treatment of a patient whose medical condition is at issue. They may testify about medical observations,56 or to observations of facts unrelated to their medical expertise. They may also testify about their expert opinions within the scope of their medical expertise. These witnesses are referred to as fact expert witnesses in the Guidelines.
It is not necessary that a medical witness have treated or examined a patient in order to testify as an expert. Expert medical testimony may be based upon a review of the medical chart or a hypothetical set of facts. Witnesses who testify in this fashion typically have been retained by one of the parties for the purpose of providing expert opinion testimony, and do not have a physician-patient relationship with the party whose medical condition is at issue. These witnesses are referred to as retained expert witnesses in the Guidelines.
- Preparation
Proper preparation for conferences, depositions, and trial testimony includes a review of the relevant medical records. The physician's office staff should cooperate in scheduling preparatory conferences and depositions at a mutually convenient time, when they are least likely to be interrupted by patient problems, other appointments or operating times.
- Independent Medical Examinations
Attorneys should provide independent medical witnesses with the ground rules of the independent medical examination submitted to them in writing, including who is to get a report, where copies should be sent, who is to pay for the examination, and the purpose and extent of the examination. Where the examination has been ordered selected or approved by a court, administrative agency or other adjudicatory body, attorneys should also provide the independent medical witness with a copy of the order approving or selecting them.
- Fees
- General Considerations
Medical witness charges for assisting attorneys in legal matters should be reasonable, reflecting the physician's experience, the level of specialization, the environment in which the physician practices, and the demand for his or her services.
The recommended fee for a medical witness' court appearance should be measured from the time the medical witness leaves their office to go to court until they return to their office from court, and should also include compensation for time spent preparing to testify. Under certain circumstances, the presiding judge will set a fee for the physician.57
- Fees in Workers' Compensation Cases
In workers’ compensation cases, all expert witness fees, and attorney fees, must be approved by the Industrial Commission. See N.C. Gen. Stat. § 97-90 (2005). Receipt of a fee without the approval of the Industrial Commission is a Class 1 misdemeanor prohibited by N.C. Gen. Stat. § 97-90 (2005).
- Prohibition Against Contingent Fees
Attorneys are prohibited from offering and physicians are prohibited from accepting fees wholly or partially contingent upon the outcome of the matter in which medical testimony is offered.58 A fee shall not be deemed contingent for the reason that the patient's financial condition may render collection difficult in the event that the patient does not prevail in a legal action.
- Fees for Fact Expert Witnesses
In civil cases in North Carolina state courts, fact expert witnesses are entitled to reasonable compensation for time spent in conferences, preparation of medical reports, depositions, time spent out of the office for court or other appearances, and for travel costs.
An attorney is ethically prohibited from having an economic interest in a client's claim. Therefore, while an attorney may advance fees which are incurred in pursuing claims,59 all such fees are ultimately the responsibility of the patient/client.60
An attorney should not place an undue burden on fact medical witnesses for services rendered at an attorney's request on behalf of a patient/client. No attorney should request a fact medical witness to consult with them or prepare a medical report for them where the client is unable to pay for the same, unless they are willing to advance the cost of such litigation expenses or they have informed the medical witness that the client is unable to pay for their services. If the client is unwilling to ultimately pay for the same, the attorney should not request such services.
The fact expert witness may require payment for depositions, conferences, and consultations at the time of the service. For some patients and clients, prepayment is not feasible and alternative methods of payment must be considered. The fact expert witness, attorney, and the patient may agree to any lawful method of payment.
- Fees for Retained Expert Witnesses
All services and fees of retained expert witnesses are subject to negotiation between the physician and the contracting party. Also, unless agreed to between the parties, any such service rendered does not create a physician/patient relationship.
Retained expert witnesses are permitted to charge a reasonable fee if their court appearance is canceled without sufficient time for the physician to reschedule patients, surgery, and consultations. However, retained expert witnesses should make a reasonable effort to profitably reschedule their time in order to minimize expense or loss.
- Fees for Independent Medical Witnesses
Independent medical witness fees may either be established by the court, administrative agency or other adjudicatory body selecting or approving them, or by the party seeking their appointment, or by the parties by agreement. Independent medical witnesses should determine how they will be paid, and by whom, prior to conducting the independent medical examination.
- Pro Bono/Criminal Cases
When an attorney stipulates in writing that they are handling a client's case without charge or expectation of payment from any recovery, then a treating physician should consider providing medical reports and testimony free of charge. Should an attorney be awarded payment unexpectedly, the physician should be notified promptly by the attorney so that a charge may be made by the physician if appropriate.
If the patient is a victim in a criminal prosecution case, then the physician should provide a medical report to the investigating law enforcement agency free of charge.
VI. JOINT COMMITTEE OF NC MEDICAL SOCIETY AND NC BAR ASSOCIATION
The Joint Committee of the N.C. Medical Society and the N.C. Bar Association shall be comprised of the Chair of the N.C. Bar Association Medico-Legal Liaison Committee and one or more N.C. Bar Association members designated by the Chair, and the Legal Counsel for the N.C. Medical Society and one or more N.C. Medical Society members designated by the Executive Director of the N.C. Medical Society. The purpose of the Joint Committee is to create a better understanding, a closer relationship, and unity between the medical and legal professions, so that each may better serve the other and the public. In order to fulfill that purpose, the Joint Committee shall meet at least annually to:
- Promulgate revisions to these Guidelines as necessary to keep them legally current and effective.
- Report annually to the N.C. Medical Society and N.C. Bar Association about the work of the Committee and make any appropriate recommendations.
- Accept and mediate reported complaints of attorneys and physicians who experience problems related to a failure to comply with these Guidelines61 and, where appropriate, forward such reports to the proper disciplinary authorities.
VII. APPENDICES
DISCLAIMER: The sample forms included in these appendices are for general reference only. They are not intended to be representative or inclusive of every instance for which medical records can be requested. Neither are they intended to advise or prescribe a mandatory format for any situation. Requests for medical information should be made with consideration of the case at hand, the information needed, local custom, and other factors.
- Appendix A1: Relevant HIPAA Definitions
- Appendix A-2 Pertinent North Carolina Statutes And Regulations Regarding Medical Records
- Appendix B: Sample Subpoena for Medical Records Without Authorization and Without Court Order or Other Authority to Inspect (In PDF Format)
- Appendix C: Sample Letter to Accompany Records Sent to Court in Response to Sample Subpoena for Medical Records Without Authorization and Without Court Order or Other Authority to Inspect
- Appendix D: Affidavit of Medical Records Custodian
PDF File
- Appendix E: Sample Letter Requesting Medical Records
- Appendix F: Selected Position Statements of the North Carolina Medical Board
- Appendix G-1: Sample Authorization Form to Use and Disclose Health Information (In PDF Format)
- Appendix G-2: Authorization Form to Use and Disclose Protected Health Information (In PDF Format)
1. The Joint Committee delegated this task to the Bar Association Medico-Legal Liaison Committee.
2. Other health care professionals are now licensed to perform medical services which were traditionally provided only by physicians. Major changes in the health insurance industry have altered traditional health care delivery systems. Alternative Dispute Resolution is now employed to resolve many claims involving physicians which were previously resolved in litigation. Technological advances challenge medical and legal attempts to protect confidential medical information and patient/client rights to privacy.
3. Despite the presence of the Guidelines, recurring disputes persist between physicians and lawyers in the litigation context. Some of these disputes have been addressed to the Joint Committee of the North Carolina Medical Society and North Carolina Bar Association for dispute resolution. Other disputes have been explored by the North Carolina Bar Association Medico-Legal Liaison Committee, which conducted public hearings prior to preparing a new draft version of the North Carolina Medico-Legal Guidelines. The Committee invited speakers to the hearings who had experienced difficulty with the implementation of the Guidelines, and believed that the Guidelines needed change.
4. N.C. Gen. Stat. § 7A-314 (2005) addresses the discretionary award of expert witness fees as costs in civil cases, but does not compel parties to seek a judicial determination of expert witness fees or who is to pay them. N.C. Gen. Stat. § 7A-454 (2005) addresses under what circumstances a court may order payment of expert witnesses who testify on behalf of indigent criminal defendants. N.C. Rule of Evidence 706 governs who shall pay, and what amount, shall be paid to expert witnesses appointed by the Court in civil and criminal actions. N.C. Gen. Stat. § 15-7 (2005) governs the payment of physicians appointed to conduct post-mortem examinations of homicide victims. In cases before the Industrial Commission, expert witness fees are set by the Commissioner or Deputy Commissioner hearing the case. See N.C. Gen. Stat. §§ 97-90 and 97-26.1 (2005).
5. This occurs, in part, because the law is unclear in certain areas and uncertain in others. See Footnote 48 regarding the subpoena of medical records by way of example.
6. In such situations, the physician or other health care provider may be a potential defendant and/or may be required to provide expert testimony affecting defendant(s) who are co-workers and colleagues.
7. See AMA Code of Medical Ethics, § 9.07 "Medical Testimony," (2004-05 ed.) (regarding ethical duty to testify if patient requests "in order to secure the patient's legal rights."). AMA Code of Medical Ethics provisions are aspirational rather than mandatory.
8. N.C. Gen. Stat. Ch. 90, Art. 1 (2005) governs the licensure of medical and osteopathic physicians in North Carolina. N.C. Gen. Stat. § 90-18.1 (2005) governs the licensure of physician assistants in North Carolina. Like physicians, other health care providers also are encouraged to follow the Guidelines but are not required to do so unless otherwise instructed by their regulatory Board. Attorneys should follow the provisions of the Guidelines in dealings with all health care professionals.
9. Relevant HIPAA citations include: 45 C.F.R. § 160.013 (2005) for the definitions of "health information" and "individually identifiable health information" and § 164.501 (2005) for the definitions of "designated record set" and "protected health information." See Appendix A-1, Relevant HIPAA Definitions.
10. Medical Records are defined by the following North Carolina statutory and regulatory provisions: N.C. Gen. Stat. §§ 8-44.1 (2005), 90-410(2) (2005), 58-39-15(18) (2005), 130A-372 (2005), 10A N.C.A.C. 13B.3900 et seq. (2005). Other provisions of North Carolina and federal law refer to information about patients" medical services using terms other than "Medical Records." See N.C. Gen. Stat. § 122C-3(9) (2005) and 42 C.F.R. §§ 2.11 and 2.13 (2004). See these Guidelines, Part IV(A)(4) (regarding records of patients receiving services for drug or alcohol abuse), and Appendix A-2, Pertinent N.C. Statutes and Regulations regarding Medical Records.
11. See AMA Code of Medical Ethics Sec. 5.07, "Confidentiality: Computers" and Sec. 5.075 "Confidentiality: Disclosure of Records to Data Collection Companies" (2004-05 ed.) (regarding confidentiality and computerized data bases).
12. See N.C. Gen. Stat. 90-411 (2005) (regarding reasonable fees for the preparation of medical reports). See also N.C. Rule of Civil Procedure 35.
13. Independent medical examinations occur in a number of contexts. For civil actions in North Carolina's state courts, see N.C. Rule of Civil Procedure 35. In workers' compensation cases, independent medical examinations can occur upon agreement of the parties, order of the Industrial Commission, or pursuant to N.C. Gen. Stat. § 97-27 (2005). Reference should be made to any Rules adopted by the Industrial Commission for guidance regarding communications with independent medical witnesses in workers' compensation cases. With regard to social security disability claims, see 20 C.F.R. §§ 404.1517 and 416.917 (2004), which discuss when the Social Security Administration will purchase a consultative examination of a disability claimant. The reports generated from these examinations are kept in the claimant's file and are available for review by the claimant and/or the claimant’s representative by going to the office that has the file. The reports are not automatically sent to the claimant or the claimant’s representative. The claimant may direct the Social Security Administration to release the report to his or her own doctor. See also 20 C.F.R. §§ 404.1519 to 404.1519t, 416.919 to 404.1519t, 409.1512, and 416.927 (2004) (regarding Social Security Administration Medical Advisors).
14. "Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of expertise." AMA Code of Medical Ethics, Sec. 9.07, "Medical Testimony" (2004-05 ed.).
15. The obligations of medical witnesses under the Guidelines may differ, depending upon which type of medical witness they are.
16. See AMA Code of Medical Ethics, "Fundamental Elements of the Patient-Physician Relationship" (2004-05 ed.) ("The patient has the right to receive information from physicians...and [patients] are also entitled to obtain copies or summaries of their medical records [and] to have their questions answered."); See also N.C. Medical Board, "Access to Physician Records" (Position Statement adopted 11/93, amended 5/96, 5/97, 3/02, and 8/03) ("Each physician has a duty on the request of a patient or the patient's representative to release a copy of the record in a timely manner to the patient or the patient’s representative, unless the physician believes that such release would endanger the patient’s life or cause harm to another person"). Complex rules govern the disclosure of medical information about an individual's substance abuse, diagnosis or treatment, and the disclosure of such information is excluded from the scope of these Guidelines. See Part IV(A)(4), infra, and N.C. Gen. Stat. § 122C-3(9) (2005). HIPAA citation regarding personal representatives can be found at 45 C.F.R. 164.502(g) (2004).
17. HIPAA mandates that a valid authorization must contain, at a minimum: (1) a description of the information to be used or disclosed; (2) the name(s) of those authorized to make the requested use or disclosure; (3) the name of the person(s) to whom the covered entity may make the requested use or disclosure; (4) the purpose of the use or disclosure; (5) an expiration date or event (e.g., end of research study); and (6) the signature of the individual and date (if the authorization is signed by a personal representative of the individual, a description of such representative's authority). 45 C.F.R. § 164.508(c) (1)(i-iv) (2004). Also, § 164.508(c)(2) requires that the authorization contain statements adequate to place the individual on notice that the individual has the right to revoke the authorization, the ability or inability to condition treatment, payment, enrollment or eligibility for benefits on whether the individual signs the authorization, and the potential for information to be disclosed pursuant to the authorization to be subject to redisclosure.
18. In workers' compensation cases, "an employer paying medical compensation to a provider rendering treatment...may obtain records of the treatment without the express authorization of the employee." N.C. Gen. Stat. § 97-25.6 (2005). Reference should be made to the Rules of the Industrial Commission or contact made with the Industrial Commission regarding the right of the employer or others acting on its behalf to obtain medical records without the express authorization of the employee. HIPAA permits such disclosure under an exemption that reads: "A covered entity may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers' compensation...." 45 C.F.R. § 164.512(l) (2004). See also AMA Code of Medical Ethics, Sec. 5.09 "Physicians in Industry," (2004-05 ed.) (Finding no physician patient relationship where "a physician's services are limited to pre-employment physical examinations or examinations to determine if an employee who has been ill or injured is able to return to work" but finding a physician-patient relationship where "a physician renders treatment to an employee, even though the physician is paid by the employer" and noting that release of such information is governed by workers' compensation laws).
19. See N.C. Gen. Stat. §§ 44-49 and 44-50 (2005). See also N.C. Rule of Professional Conduct 1.15-1 (1997) and N.C. RPC 69, ("Payment of Client Funds to Medical Provider" (1989)) and N.C. RPC 125 ("Disbursement of Settlement Proceeds" (1992)) (requiring lawyer to obey client's instruction not to pay medical providers from the proceeds of settlement in the absence of a valid physician's lien).
20. North Carolina Industrial Commission Minutes, January 12, 1995. See Appendix E for additional information.
21. See N.C. Gen. Stat. § 90-411 (2005) and N.C. Medical Board, "Access to Physician Records" (Position Statement adopted 11/93, amended 5/96, 9/97, 3/02, and 8/03).
22. See N.C. Medical Board, "Access to Physician Records" (Position Statement, adopted 11/93, amended 5/96, 9/97, 3/02 and 8/03) (“Medical records should not be withheld because an account is overdue or a bill is owed."). An attorney may not pay client bills for treatment, although they may advance medical litigation expenses on behalf of a client. See N.C. Rule of Professional Conduct 1.8(e) (1997), RPC 80, "Lending Money to a Client," (1990), and CPR 157 (attorney may advance cost of medical examination if same is litigation expense).
23. See N.C. Gen. Stat. §§ 8-53 and 8-44.1 (2005); N.C. Rule of Civil Procedure 45(c); the Rules of the Industrial Commission. See RPC 162, "Communications with Opposing Party's Physicians" (1994) (prohibiting attorney from communicating with opposing party's non-party treating physicians unless the opposing party consents, in non-workers' compensation setting); RPC 180 "Communications with Opposing Party's Physicians" (1994) (extending that prohibition to passive listening); RPC 224 (1997) (extending prohibition to employer's attorney in workers' compensation setting). See also RPC 184 "Communications with Physicians Performing Autopsy" (1994) (allowing opposing counsel to communicate with pathologist performing autopsy without decedent’s personal representative's consent). See also AMA Code of Medical Ethics §§ 5.05 "Confidentiality," ("The physician should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law"); Sec. 5.055 “Confidential Care for Minors,” and Sec. 5.06 "Confidentiality: Physician-Attorney Relation" (2004-05 ed.).
24. N.C. Medical Board "Medical Record Documentation" (Position Statement, adopted 5/94, amended 5/96) (medical record "provides a legal document to verify the delivery of care").
25. See 42 U.S.C. 290dd-3; 42 C.F.R. § 2.1 et seq. (2004) Examples of federal assistance triggering coverage of the rules include tax exemption and participation in Medicare or Medicaid. 42 C.F.R. § 2.12(B) (2004). Also, see N.C. Gen. Stat. §§ 122C-51 et seq. (2005).
26. See 42 C.F.R. §§ 2.31, 2.33 (2004) (written consent); 42 C.F.R. § 2.61 et seq. (2004) (court orders).
27. 42 C.F.R. § 2.11 (2004).
28. 42 C.F.R. § 2.13 (2004).
29. See Appendix A-1 for definition of psychotherapy notes.
30. In workers' compensation cases, there may be circumstances under which the employer or its representative may communicate with physicians. Contact the N.C. Industrial Commission to ascertain the current status of the law on this issue.
31. See AMA Code of Medical Ethics §§ 9.07, "Medical Testimony," ("If a patient who has a legal claim requests a physician's assistance, the physician should furnish medical evidence, with the patient's consent, in order to secure the patient's legal rights. The attorney for the party who calls the physician as a witness should be informed of all favorable and unfavorable information developed by the physician’s evaluation of the case.") and 8.12, "Patient Information" (2004-05 ed.) (requiring physicians to be honest and open in their dealings with patients even in situations where "a patient suffers significant medical complications that may have resulted from the physician's mistake or judgment. In these situations, the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred. Concern regarding legal liability which might result following truthful disclosure should not affect the physician's honesty with a patient.").
32. See Rule 4.3 of the North Carolina Revised Rules of Professional Conduct (1997).
33. In criminal cases in North Carolina state courts, medical witnesses usually testify at the trial because medical testimony is rarely taken by deposition.
34. A deposition is a discovery tool which allows one side of a lawsuit to discover the information known to witnesses for the other side. Typically, the attorney opposing the patient’s claim is prohibited from communicating with the patient's physician prior to trial except at a deposition. The opposing attorney is frequently in need of the physician's deposition testimony in order to defend against the patient's claim. The deposition is usually that attorney's only opportunity to discern the physician's opinion regarding the patient's medical condition.
35. This occurs when the witness may be legally unavailable at the time of a subsequent trial.
36. This occurs to accommodate the physician's schedule notwithstanding that live medical testimony is considered to be more effective than deposition medical testimony.
37. For example, absent the consent of the opposing party, witness depositions may not be used in lieu of live testimony unless the court finds certain apply. N.C. R.Civ. P. 32(a)(4).
38. See Section III(E) above defining the types of medical witnesses recognized under the Guidelines. Where the Guidelines refer to a physician as a "medical witness" the statement refers to all types of medical witnesses defined therein.
39. N.C. Gen. Stat. § 7A-314(d) (2005) allows the Court in its discretion to authorize payment of expert witness fees and allowances, but only when the witness has testified (either at trial or deposition) after having been served with a subpoena. State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972); Town of Chapel Hill v. Fox, 120 N.C. App. 630, 463 S.E.2d 421 (1995). N.C. Gen. Stat. § 7A-314 (2005) does not compel parties to seek a judicial determination of expert witness fees or who is to pay them. N.C. Gen. Stat. § 7A-454 (2005) addresses under what circumstances a court may order payment of expert witnesses who testify on behalf of indigent criminal defendants. N.C. Rule of Evidence 706 governs who shall pay, and what amount, shall be paid to expert witnesses appointed by the Court in civil and criminal actions. N.C. Gen. Stat. § 15-7 (2005) governs the payment of physicians appointed to conduct post-mortem examinations of homicide victims. In cases before the Industrial Commission, expert witness fees are set by the Commissioner or Deputy Commissioner hearing the case. See N.C. Gen. Stat. §§ 97-90(c) and 97-26.1 (2005).
40. See AMA Code of Medical Ethics, Section 9.07, "Medical Testimony" (2004-05 ed.) ("As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician's assistance, the physician should furnish medical evidence, with the patient's consent, in order to secure the patient's legal rights... Medical witnesses should be adequately prepared and should testify honestly and truthfully to the best of their medical knowledge."). See also N.C. Medical Board Position Statement "The Physician-Patient Relationship (adopted 7/95, amended 7/98, 1/00, 2/02, and 8/03): ("[I]t is the position of the North Carolina Medical Board that any act by a physician that violates or may violate the trust a patient places in the physician places the relationship between physician and patient relationship."). Finally, N.C. Gen. Stat. § 90-14 (2005) (regulating physician and physician assistant conduct finds impermissibly unprofessional conduct "contrary to honesty, justice, or morals").
41. A specific example of a "rare emergency" arises pursuant to the statutory provisions of N.C. Gen. Stat. § 50B-2 (2005), which permits a party alleging acts of domestic violence to seek a hearing on an ex parte or expedited basis.
42.Each time a case is scheduled for trial, an attorney must prepare the case fully and subpoena all the witnesses. Most cases are scheduled for trial several times before they are actually called for trial by the Court.
43. Judicial Districts in North Carolina typically include one or more counties, depending upon whether the district is primarily urban or rural.
44. This is because attorneys do not have power to postpone scheduled trials and must apply to a Judge for a continuance. The later the application for a continuance, the less likely it is that the Court will grant the requested postponement.
45. In workers' compensation hearings, physicians may testify in hearings before the Industrial Commission regarding facts communicated or learned by physicians while attending or examining the employee patient without the specific consent of the employee.
46. As noted in Section V.A.1.a., a "rare emergency" may arise pursuant to the statutory provisions of N.C. Gen. Stat. § 50B-2 (2005), which permits a party alleging acts of domestic violence to seek a hearing on an ex parte or expedited basis.
47. See N.C. Rule of Civil Procedure 45(c). Although Rule 45(c) specifically authorizes the "custodian of hospital medical records" to respond to a subpoena for "hospital medical records as defined in N.C. Gen. Stat. § 8-44.1" by certified mailing of the records, it has become common practice in North Carolina state courts for all types of medical records to be sent by certified mail unless an issue arises as to the authorization of the subpoenaing party to inspect the records. N.C. Gen. Stat. § 8-44.1 (2005) broadly defines "hospital medical records."
48. 45 C.F.R. § 164.512(e) (2004).
49. N.C. Gen. Stat. § 8-53 (2005) authorizes a resident or presiding judge, in the trial division where the case is pending, or the Industrial Commission pursuant to law, to order the disclosure of the records without authorization at or before trial where to do so is necessary to a proper administration of justice.
50. Defense counsel may subpoena to a court proceeding the records of current and/or prior treating physicians they have no authority to inspect. In this situation, the attorneys involved expect that, if the patient's attorney objects to disclosure of the records to the defense counsel, the presiding judge at the trial of the action will examine the records in camera (privately) to determine whether the records should be ordered released for the inspection of the subpoenaing party. See N.C. Rule of Professional Conduct 1.2(c) and RPC 236 "Misuse of Subpoena Process" (1997) (prohibiting abuse of the subpoena process by subpoenaing medical records to a lawyer's office where no legal proceeding is occurring).
51. See Appendix B, Sample Subpoena for Medical Records without Authorization and without Court Order or Other Authority to Inspect.
52. See 45 C.F.R. . § 164.512(e) (2004) for detailed information regarding subpoenas.
53. See Appendix C, Sample Letter to Accompany Records sent to Court in Response to Sample Subpoena for Medical Records without Authorization and without Court Order or Other Authority to Inspect.
54. See II (E) above for definition of the three types of medical expert witnesses.
55. If a medical witness is not tendered to and accepted by the presiding judge as an expert, they may not express expert medical opinions and the judge will not have authority to award them an expert witness fee.
56. Medical observations will often be based on medical expertise and therefore be based on expert opinion. For example, when testifying to their medical diagnosis of a patient, the fact witness is expressing an expert medical opinion.
57. This only occurs on motion of the party prevailing in a matter, if they have called the medical witness, the witness has testified pursuant to subpoena, and has been received by the court as an expert witness. In this instance, the prevailing party seeks to have the fee set and taxed against the losing party as a court cost. See N.C. Gen. Stat. § 7A-314 (2005). This fee may not necessarily represent the entire fee owed a retained or fact medical witness by virtue of their contractual relationship with the attorney and/or their patient or client. Nothing compels a party to move for expert witness fees to be taxed as costs. See also N.C. Gen. Stat. §§ 6-20 and 7A-305 (2005).
58. See AMA Code of Medical Ethics §§ 6.01 "Contingent Physician Fees" (prohibiting the same) and 8.10 "Lien Laws" (2004-05 ed.) (allowing liens only where "the fee is fixed in amount and not contingent on the amount of settlement of the patient's claim against a third party). Cf. N.C. Gen. Stat. §§ 44-49 through 44-51 (2005) (N.C. lien laws allocating fees based on pro rata share of percentage of recovery).
59. Such fees are called "litigation expenses" and are to be distinguished from charges for treatment, which may not be ethically advanced by attorneys. See footnote 24.
60. Where the attorney incurring the fee does not represent the patient, the fee is nonetheless a litigation expense to be borne by his or her client. This typically happens when the defense attorney takes the deposition of a treating expert witness, and is responsible for their fees for testifying.
61. However, the Joint Committee will not mediate fee disputes between retained expert witnesses and attorneys, or between independent medical witnesses and attorneys.
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