LEO: Costs - Medical Records LE Op. 1060
Costs - Medical Records.
March 31, 1988
You advise that your firm took on a personal injury case from another
attorney a month ago. The proper authorization forms were sent to the
doctor for release of medical records. In return, your office received a
request from the doctor to guarantee payment upon settlement and to pay
him $400 per day if he had to testify in court. Your firm agreed to the
above, but never received the doctor's records. You also advise that the
doctor called your clients and advised them to change attorneys since he
was not going to release records until his fee was paid. Your firm plans
to subpoena the records.
You wish to know whether you must pay the doctor for the records since
your firm will be forced to go to court to secure them.
Disciplinary Rule 5-103(B) [ DR:5-103] states that, "While representing
a client in connection with contemplated or pending litigation, a lawyer
shall not advance or guarantee financial assistance to his client, except
that the lawyer may advance or guarantee the expenses of litigation,
including court costs, expenses of investigation, expenses of medical
examination, and costs of obtaining and presenting evidence, provided the
client remains ultimately liable for such expenses." See also LE Op. 773
and LE Op. 820.
The Committee advises that pursuant to DR:5-103(B), should the doctor
release the records, you may advance the costs of the records provided
your client remains ultimately liable for such expenses. Whether you are
obligated to pay the doctor for the records which you have had subpoenaed
is a legal question beyond the purview of this Committee.
Committee Opinion March 31, 1988
See also LE Op. 1237.