Frequently, such a letter provides a lengthy one-sided description of the alleged error(s) by the other provider(s), culminating in a statement that the attorney believes medical malpractice clearly occurred. The letter then asks the recipient physician for a medical narrative about the care he/she rendered to the patient and to express an opinion as to whether the patient's injuries were due to substandard care by the other provider(s). Normally a patient authorization is attached.

Sometimes a physician receiving such a letter will contact an attorney or his medical professional liability carrier before responding. Often, however, the recipient will simply do as the plaintiff attorney requests, possibly due to a mistaken belief that such a narrative is required by law.

What is legally required? A physician receiving a proper medical authorization or a subpoena for medical records must promptly provide the requested medical records. The physician may charge for the copy, with the maximum charge being set by Louisiana law, [Louisiana law now provides for a maximum charge for electronic records as well]. Additionally, a physician subpoenaed for a deposition or trial must attend unless action is taken to quash (declare invalid) the subpoena. If a physician receives an informal request for deposition dates, usually cooperation is best so as to maximize the chance that the deposition will take place at a time and place of the physician's choosing

A narrative report for a plaintiff attorney is not legally required and can be unfair, unwise, and dangerous for several reasons:

First, the plaintiff attorney typically provides a slanted review of the medical care and does not provide the physician with all of the relevant medical records necessary to render a fair opinion. Often such records would adequately explain the actions of the prior health care providers.

Second, such a narrative becomes evidence and can be used against the author later if a deposition is given and the testimony varies from that narrative. The physician may end up becoming a defendant in the case. Plaintiff attorneys may state that they merely want the physician's opinion and will not make the physician a defendant, only later to add the physician as a defendant because of an "unexpected change in circumstances." Legal theories change as a case unfolds, and sometimes the added defendant regrets statements hastily made in the requested narrative.

Third, plaintiff attorneys are not your friends, and you have no duty to make their job easier. One irate physician who received such a request commented that the plaintiff attorney seeking his opinion was actually suing him in another case! If the plaintiff attorney wants to seek expert advice, let the attorney pay for it.

If a physician does not want to simply ignore the request for a narrative, he or she should respond by saying "I am not willing to provide such a narrative. I would be glad to provide a copy of my medical records if you need them."

As always, if you have any concerns about communications from a plaintiff attorney, you should contact your attorney or your medical professional liability carrier.

This is an abridged version of an article that originally appeared in the November/December 2011 issue of The Letter published by LAMMICO. It has been reprinted with permission from LAMMICO and the author.

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