When Health Care Providers are Impervious to Subpoenas

by Law Week Contributor

By Tom Cossitt

The Cossitt Law Firm

Health care professionals are often called to testify as witnesses and provide medical records; but if the health care providers work for the Department of Veteran Affairs — or any federal agency — they are federal employees and, as such, cannot be subpoenaed as other witnesses might be. In United States ex rel. Touhy v. Ragen, the U.S. Supreme Court held that the head of a federal agency has the authority to forbid or permit an employee’s testimony in response to a subpoena. It is our federal government’s sovereign immunity that supports the reasoning in Touhy.

Parents involved in child custody cases often rely on the testimony of their family therapist, as the court must consider the mental and physical health of all individuals involved when determining the allocation of parental responsibilities; but this valuable testimony may not be available if the therapist is employed by the VA. While the VA has an exception for authorizing compliance with a subpoena, the chances of obtaining the testimony needed is small. Skilled family law practitioners should work around the VA to establish the evidence needed when representing veterans involved in family law matters where health care professionals employed by the federal government are involved.

Background on Touhy

Congress granted federal agencies the power to implement their own regulations governing the possession, access and control over their records when adopting 5 U.S.C. § 22, now 5 U.S.C. § 301, and the Supreme Court affirmed in United States ex rel. Touhy v. Ragen, that administrative agencies’ own protocols govern if and how they respond to a subpoena.

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