Title 231--RULES OF CIVIL PROCEDURE PART I. GENERAL [231 PA. CODE CHS. 200 AND 4000] Proposed Amendments Governing Production of Medical Records; Proposed Recommendation No. 148 [28 Pa.B. 3253] The Civil Procedural Rules Committee proposes that Rules of Civil Procedure 234.1 and 4007.1 be amended to provide for the production of medical records. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.
All communications in reference to the proposed recommendation should be sent not later than September 1, 1998 to:
Harold K. Don, Jr., Esquire
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055or E-Mail to
civil.rules@supreme.court.state.pa.usThe Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure nor will it be officially adopted or promulgated by the Court.
Annex A TITLE 231. RULES OF CIVIL PROCEDURE PART I. GENERAL CHAPTER 200. BUSINESS OF COURTS Rule 234.1. Subpoena to Attend and Testify.
* * * * * (d)(1) If a subpoena is used to compel a health care provider or an employee of a health care facility to attend and to produce documents or things, the following notice shall be attached to the front of the subpoena:
Notice to Health Care Provider/
Health Care FacilityThe enclosed subpoena orders you to come to a courtroom or other place at a specific date and time and to bring with you certain medical charts or records. Unless you have received a written authorization from the patient or the patient's attorney permitting the release of these medical charts or records beforehand, you may not deliver any medical charts or records described in the subpoena to any party prior to the date set forth in this subpoena.
(2) If a health care provider or an employee of a health care facility mistakenly furnishes medical charts or records to a party prior to the time and place set forth in the subpoena, the party, as soon as the mistake is discovered, shall place the records in a sealed envelope without further review and shall notify all other parties by the next business day that the records were prematurely produced.
Official Note: Subdivision (d)(2) is not intended to provide guidance as to the responsibility of an attorney who in any other setting receives documents inadvertently disclosed.
CHAPTER 4000. DEPOSITIONS AND DISCOVERY Rule 4007.1. Procedure in Deposition by Oral Examination.
* * * * * (d)(1) If the person to be examined is a party, the notice may include a request made in compliance with Rule 4009.1 et seq.[,] for the production of documents and tangible things at the taking of the deposition.
(2) If the person to be examined is not a party, and is to be served with a subpoena duces tecum to produce designated materials, the notice shall specify the materials to be produced. The materials shall be produced at the deposition and not earlier, except upon the consent of all parties to the action.
Official Note: See Rule 234.2(d) for the form of notice to be attached to the front of the subpoena when it is used to compel the production of medical charts or records by a heath care provider or facility.
Section 6152(c) of the Judicial Code provides that upon electing to proceed under Section 6151 et seq., a health care provider or facility, ''upon payment of its expenses by the party causing service of the subpoena, or by any other party, shall within 30 days deliver copies of all medical charts or records specified in the subpoena.'' In accordance with Rule 133 and the Constitution of 1968. Section 6152(c) of the Judicial Code is suspended to the extent that it is inconsistent with Rule 4007.1(d)(2) in authorizing production of the subpoenaed documents earlier than the time specified in the subpoena.
* * * * * Explanatory Comment Section 6152(c) of the Judicial Code relating to the subpoena of medical records provides:
(c) Delivery of records.--Following this election, the health care provider or facility shall hold the originals available, and, upon payment of its expenses by the party causing service of the subpoena, or by any other party, shall within 30 days deliver, by first class mail, certified mail, return receipt requested, or by personal delivery, legible and durable copies, certified by the health care provider or facility of all medical charts or records specified in the subpoena. However, a district attorney shall not be required to pay for copies of medical charts or records before receipt and the charts or records shall be delivered on or before the date specified on the subpoena duces tecum.
Rule of Civil Procedure 4007.1(d)(2) provides that records may not be provided to the party issuing the subpoena before the date specified in the subpoena. The Code conflicts with the rules to the extent that it authorizes the health care provider or facility to deliver the records prior to the date set forth in the subpoena. However, pursuant to the Constitution of 1968 and Rule 133, a statute which is inconsistent with a general rule is suspended to the extent of the inconsistency. Section 6152(c) is suspended to the limited extent of the inconsistency and a note to this effect is added to Rule 4007.1(d)(2).
To assure compliance with Rule 4007.1(d)(2), it is proposed that new subdivision (d) be added to Rule 234.1 governing subpoenas to attend and testify. Subdivision (d) requires that, when medical records are to be produced in connection with the subpoena to attend and testify, a special notice be attached to the front of a subpoena advising that the records are not to be produced before the date set forth in the subpoena in the absence of an authorization from the plaintiff or the plaintiff's attorney. In the event that the records are mistakenly provided in advance, proposed subdivision (d)(2) provides that the party receiving the records ''as soon as the mistake is discovered, shall place the records in a sealed envelope without further review and shall notify all other parties by the next business day that the records were prematurely produced.''
By the Civil Procedural
Rules CommitteeEDWIN L. KLETT,
Chairperson[Pa.B. Doc. No. 98-1090. Filed for public inspection July 10, 1998, 9:00 a.m.]
