Don’t make this mistake when serving a subpoena

plaintiff's personal injury lawyer and doctor should know better

plaintiff's personal injury lawyer and doctor should know better

Let’s check your Legal I.Q.  You learn from your car accident client that she suffered an injury to her back in a prior automobile accident. You wish to obtain her treatment records from her prior orthopedic surgeon. Your secretary calls the doctor’s office, but cannot get past a snarly gate keeper of a secretary; and the doctor will not take her calls.

You decide to mail the physician a subpoena duces tecum for your client’s medical records, along with  a deposition notice. The former physician ignores your subpoena. Now, you’re really mad! You file a complaint with an order to show cause seeking authorized service of the subpoena by mail on the doctor’s lawyer; even though he had not engaged an attorney.  The complaint and OTSC  were mailed directly to the former physician, who again ignores them.

When the doctor fails to appear on the return date of the OTSC, the judge issues an order directing the doctor to turn over the medical records; which the doctor ignores.  Steam is coming out of your ears.  You file a motion to enforce litigant’s rights under Rule 1:10-3, asking for legal fees and sanctions; and if the doctor continues to disobey, a warrant for his arrest.  Now you got him.

The judge hearing your motion oders the doctor to pay $2,592 in legal fees plus a $1,000 saction.  The order also allows for the doctor’s arrest if he continues to disregard the court order. Ultimately, the doctor turns over the records to avoid execution of an arrest warrant. Is this the end? Absolutely not.

You are enraged and will not drop the sanctions, and the judge grants your motion to enforce. You win, right? Absolutely not. Why?

The doctor appeals the judge’s decision and the New Jersey Appellate Division reverses, relying on Rule 1:9-3.  Subpoenas are to be served “by delivering a copy thereof to the person named together with tender of the fee allow by law”.  All you had to do after the doctor ignored the subpoena by mail, was to serve him personally with another subpoena.

The appeals court held that sevice of a document subpoena by mail might be a good way to conduct discovery when all involved are willing to cooperate but it is not an effective manner of serving a subpoena on an unwilling non-party.

What do you think? Good result?

AnalysisShame on everyone involved in this mess. The plaintiff’s lawyer should know better.  All he has to do is read the Rule. No excuse. The former physician should act like an adult, fulfill his responsibility to his former patient, and turn over her medical records. Why play games? If I was his former patient, I would file a complaint with the Medical Board.

The motion’s judge relied upon plaintiff”s counsel’s representation that the former physician is represented by an attorney when he ordered service by mail on the counsel for the former physician.

Physicians don’t like lawyers and lawyers don’t like physicians; except when they need each others help.

[editor’s note: fact pattern is based upon a similar fact pattern in NJ Cure v. Estate of Robert Hamilton, A-0964-08; opinion by Judge Alexander Waugh, Jr., jointed by Edith Payne and Richard Newman]


About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information and beating NYC parking tickets for the driving community in NYC

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