Request By:
Mr. C. Alex Rose
Curtis, Rose & Parker
The Bayly House
1012 South Fourth Street
Louisville, Kentucky 40203
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
In your letter to the Attorney General dated May 29, 1979, you state the following:
"I am the attorney for Norton-Children's Hospitals, Inc. here in Louisville and was recently requested by my client to make inquiries of the local Commonwealth Attorney's Office as to why no payment was ever made by them for medical records subpoenaed in their criminal cases."
"I spoke with Mr. Paul Richwalsky, First Assistant Commonwealth Attorney, and was informed by him that in criminal matters this manner of requiring medical information was deemed more acceptable than sending out a subpoena for the medical records librarian with the medical records to appear in Court and possibly have the librarian lose quite a bit of time from work. Evidently, some similar agreement has been reached with General Hospital here in Louisville, that free medical records are preferable to consuming large amounts of the medical records librarian's time.
"Apparently, the Commonwealth Attorney's Office also informed the Norton-Children's medical records librarian that their standard $25.00 appearance fee for coming to Court with medical records would also not be paid in the event they opted not to copy these records for free but rather show up in Court in response to the subpoena. Be that as it may, the hospital is now nearly $2,000.00 in the hole for these free medical records they have been providing to the Commonwealth Attorney's Office."
You have requested that this office issue an opinion which would make compensation for subpoenaed medical records or time of medical records librarians compensable in some manner. We have researched this question and found that the payment of witness fees and expenses is not required in criminal prosecutions. 81 Am.Jur.2d Witnesses § 12.
"The right of a witness to compensation is purely statutory, since at common law no witness fees were paid." 81 Am.Jur.2d Witnesses § 23.
"Witnesses owe a due to the state to aid in the due administration of government for such compensation as the law provides, and they may be compelled to appear and testify even though the statute makes no provisions for compensation." 81 Am.Jur. 2d Witnesses § 28.
This general rule of law has been upheld by the United States Supreme Court against the claim that it infringed upon Fifth Amendment rights against the taking of private property without just compensation in Hurtado v. United States, 410 U.S. 578, 35 L. Ed. 2d 508 (1973). The Court's opinion includes the following:
"But the Fifth Amendment does not require that the government pay for the performance of a public duty it is already owed. [Citations omitted.] It is beyond dispute that there is in fact a public obligation to provide evidence, [Citations omitted] and that this obligation persists no matter how financially burdensome it may be. . . . It is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the government is bound to perform upon being summoned, and for performance of which he is entitled to no further compensation than that which the statute provides. The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public. Blair v. United States, 250 U.S. 273, 281, 63 L. Ed. 979, 39."
Since Kentucky has no statute authorizing the payment of fees or expenses to witnesses in criminal trials, it is our opinion that no such payment is required or authorized.
It appears to us that the accommodation offered by the Commonwealth Attorneyhs Office to accept copies of medical records in lieu of summoning the records custodian by subpoena is fair and as far as the Commonwealth Attorney may go in granting relief. Of course, in some cases, it may still be necessary to subpoena the records custodian as a witness in the trial even though the custodian has furnished a copy of the records.