A personal injury case comes in the door and Plaintiff is receiving medical treatment through the VA. Like any other case, you simply go depose the relevant treaters or subpoena them to appear for trial, right? Probably not. VA physicians are federal employees and the VA has enacted regulations which restrict the ability of private parties to obtain their deposition.
I have attempted to depose VA physicians on several occasions and, once the letter requesting their availability is received, I usually get a response from a VA attorney that looks like this:
I understand your law firm is defense counsel in a civil case involving [plaintiff]. I also understand that you would like to schedule a deposition of Department of Veterans Affairs Southern Nevada Healthcare System (VASNHS) physician [name] in connection with that case. You are seeking Dr. [name]’s testimony based on his role as a VA treating physician for [plaintiff].
Testimony by VA employees concerning official VA matters where VA is not a party, as is the case here, is governed by 38 C.F.R. §§ 14.800 through 14.810 (attached). My office provides legal advice for VA physicians employed by the VASNHS, which includes determinations whether these providers may provide testimony under these regulations. See 38 C.F.R. § 14.807(b). I analyze the factors set forth in 38 C.F.R. §14.804 to make this determination. In order for me to consider your request, please provide me with an affidavit or similar writing consistent with 38 C.F.R. § 14.805. The affidavit should address each of the factors set forth in §14.804, demonstrating why these factors weigh in favor of permitting the sought testimony. Once I have this information, I will make a determination and advise you of that determination in writing. Based on information presently available to me, however, I cannot authorize Dr. [name] to testify.
This initial response is consistent with the federal regulations I cited above and with a line of cases holding, under principles of federal supremacy and sovereign immunity, that federal officers should not be subpoenaed to testify in court proceedings of which they are not parties without their approval. Touhy v. Ragen, 340 U.S. 62 (1951); Moore v. Armour Pharmaceutical Co., 927 F.2d 1194 (11th Cir. 1991); Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir. 1989); United States v. McLeod, 385 F.2d 734 (5th Cir. 1967); Environmental Enterprises, Inc. v. EPA, 664 F. Supp 585 (D.C. 1987).
What must you demonstrate to obtain this physician’s deposition or have them testify at trial? Read 38 C.F.R. § 14.804 below, this version is current through the date of this post but, as always, could change later.
In deciding whether to authorize the disclosure of VA records or information or the testimony of VA personnel, VA personnel responsible for making the decision should consider the following types of factors:
(a) The need to avoid spending the time and money of the United States for private purposes and to conserve the time of VA personnel for conducting their official duties concerning servicing the Nation’s veteran population;
(b) How the testimony or production of records would assist VA in performing its statutory duties;
(c) Whether the disclosure of the records or presentation of testimony is necessary to prevent the perpetration of fraud or other injustice in the matter in question;
(d) Whether the demand or request is unduly burdensome or otherwise inappropriate under the applicable court or administrative rules;
(e) Whether the testimony or production of records, including release in camera, is appropriate or necessary under the rules of procedure governing the case or matter in which the demand or request arose, or under the relevant substantive law concerning privilege;
(f) Whether the testimony or production of records would violate a statute, executive order, regulation or directive. (Where the production of a record or testimony as to the content of a record or about information contained in a record would violate a confidentiality statute’s prohibition against disclosure, disclosure will not be made. Examples of such statutes are the Privacy Act, 5 U.S.C. 552a, and sections 5701, 5705 and 7332 of title 38, United States Code.);
(g) Whether the testimony or production of records, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified pursuant to applicable statutes or Executive Orders;
(h) Whether the testimony would interfere with ongoing law enforcement proceedings, compromise constitutional rights, compromise national security interests, hamper VA or private health care research activities, reveal sensitive patient or beneficiary information, interfere with patient care, disclose trade secrets or similarly confidential commercial or financial information or otherwise be inappropriate under the circumstances.
(i) Whether such release or testimony reasonably could be expected to result in the appearance of VA or the Federal government favoring one litigant over another;
(j) Whether such release or testimony reasonably could be expected to result in the appearance of VA or the Federal government endorsing or supporting a position advocated by a party to the proceeding;
(k) The need to prevent the public’s possible misconstruction of variances between personal opinions of VA personnel and VA or Federal policy.
(l) The need to minimize VA’s possible involvement in issues unrelated to its mission;
(m) Whether the demand or request is within the authority of the party making it;
(n) Whether the demand or request is sufficiently specific to be answered;
(o) Other matters or concerns presented for consideration in making the decision .
The message from this regulation? Leave us alone. I have yet to obtain the deposition of a VA physician. I did once, however, obtain the deposition of a FAA regional medical examiner applying somewhat similar criteria.