On March 28, Governor Haslam signed a bill adding advance practice nurses to the statutory list of persons exempt from subpoena to trial. As a general rule, anyone can be subpoenaed to testify at trial. Rule 45 of the Tennessee Rules of Civil Procedure generally govern subpoenas in civil lawsuits. Subpoenas are serious, whether they are for a deposition, production of documents, or testimony at a hearing or trial. Rule 45.06 subjects a person who fails to respond or otherwise obey a subpoena to contempt of court. However, similar to most states, our Legislature has recognized that certain individuals should be exempt from having to come testify live at trial. This exemption is found in Tennessee Code Annotated § 24-9-101. Including the recent March 28 amendment, this statute now reads as follows:
(a) Deponents exempt from subpoena to trial but subject to subpoena to a deposition are:
(2) An officer of this state;
(3) An officer of any court or municipality within the state;
(4) The clerk of any court of record other than that in which the suit is pending;
(5) A member of the general assembly while in session, or clerk or officer thereof;
(6) A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney;
(7) A jailer or keeper of a public prison in any county other than that in which the suit is pending; and
(8) A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided in title 68, chapter 11, part 4, for the production of hospital records pursuant to a subpoena duces tecum.
(b) If the court grants a motion to quash a subpoena issued pursuant to subsection (a), the court may award the party subpoenaed its reasonable attorney’s fees and expenses incurred in defending against the subpoena.
It is easy to see why most of these categories of individuals are included in this list. Subpart (6) includes a list of health professionals as well as attorneys. In the case of health professionals, it is easy to understand why the Legislature would deem it important that these persons should be exempt from having to come testify live at trial. The health care providers listed in subpart (6) are those that have their own patients and see those patients every day. The Legislature understands that individuals in these professions provide patient care that cannot be delegated while they are away from the office. Further, these individuals are often in critical positions for maintaining patient care. For example, advanced practice nurses include Certified Registered Nurse Anesthetists (CRNAs). Hospitals often rely on CRNAs to keep their operating rooms open. If there is an alternative to having these individuals testify live at trial, it makes sense that they be exempted.
This statute, as well as both the Tennessee Rules of Evidence and the Tennessee Rules of Civil Procedure, provides alternatives to live testimony. Specifically, this statute clearly states that these individuals are still “subject to subpoena to a deposition.” Rule 30.02(4)(B) allows depositions to be recorded by audio-visual means. A deposition of an exempted health care provider witness can easily be recorded on video with the attorneys questioning the witness as if the witness were on the stand in the courtroom. The video is then showed to the jury at some point during the trial.
Over the years, the list of persons exempted in Tenn. Code Ann. § 24-9-101 has grown, especially in regards to health care professions as the health care industry has evolved. Physician assistants were added to the list in 2012. Advanced practice nurses are now included in the list. APNs include providers such as nurse practitioners, nurse anesthetists, and nurse midwives.
As a final note, if you are a person included in this list and you receive a subpoena to trial, this statute does not mean that you can ignore the subpoena. You still have a duty to respond to the subpoena. After all, the statute does not prohibit you from testifying. It merely exempts you from testifying. In such a case, it would be wise to immediately contact an attorney to discuss the subpoena. Our litigation attorneys are well-versed in helping exempted persons properly respond to subpoenas. Further, subsection (b) of the exemption statute allows the court to award reasonable attorney’s fees to an exempted party who is subpoenaed to trial and who subsequently has to hire an attorney to have the subpoena quashed, if the order quashing the subpoena is based on the fact that the person is exempt under the statute.