You just received a subpoena. Now what?

Don't be hasty, don't be foolish, don't be scared. Be prepared.

By Steven I. Kern, JD

You're finishing some paperwork at the end of a long day when your office manager comes in with a letter from a local law firm. "Oh, my God!" you think, "I'm being sued." But the news isn't that bad: It's just a subpoena: "You are hereby summoned," it reads, "to produce all medical records relating to your treatment of . . ."

Should you be nervous? Scared? As with most legal questions, that depends. Certainly any subpoena deserves your concern, as well as a cautious response. Respond too hastily, and you could be a defendant yourself, sued by a patient or disciplined by the state medical board for unauthorized release of medical records.

One naive internist recently received a subpoena demanding medical records for a patient who had sued one of the doctor's colleagues. On his own initiative, the internist called the plaintiff's lawyer and got into a detailed discussion of the case, including his own role as one of the treating physicians. Based on the information he unwittingly revealed in that conversation, the internist became a co-defendant in the case.

To avoid such blunders, the first thing to do is fax the subpoena to your own attorney. He'll tell you the proper way to respond, and hopefully prevent you from turning over unauthorized or inappropriate information. If you want the lawyer who sent the subpoena to clarify his demands, don't call him yourself. That could initiate an uncontrolled dialogue in which anything you say could be used against you later in court. Instead, have your office manager make that call for you.

No matter how official it appears, a subpoena is simply a document signed by an attorney as "an officer of the court." Unless otherwise indicated, it has not been issued, reviewed, or approved by a judge. And the type of case it seeks information about—civil or criminal, personal injury or medical malpractice—makes a big difference in the power of the subpoena and your obligation to respond to it. So does the jurisdiction of the court its being heard in.

Before turning over any medical records . . .

The type of subpoena you're most likely to get is a request for the medical records of a patient you've treated. While the request may be routine, don't be too quick to turn the records over. In the first place, you may not be obliged to; and in the second place, you are obliged to protect the confidentiality of the doctor-patient relationship. Remember: The unauthorized release of a patient's records can result in a civil suit against you by the patient, or a disciplinary action—including possible loss of license—by the state medical board.

A pediatrician found himself in just such a spot recently when he was subpoenaed in a divorce case. The husband's lawyer wanted the children's medical records, hoping to find evidence of physical abuse or neglect by the mother.

Fortunately the doctor called our office. Since the children's mother was their custodial parent, we advised him not to provide the records. If he had, she could have sued him, and created trouble for him with the state medical board. He could also have been compelled to testify about the alleged abuse in the divorce action.

In many states, a subpoena for medical records generally has no legal power until a lawsuit has been filed in court. Before then, you're not obligated to provide records to a lawyer—except when authorized by the patient—for what may amount to "a fishing expedition."

Make sure the patient signs a release

Even after a case has been filed, you should produce records only if you have a release signed by the patient within the past six months. Once you have such a release authorizing you to provide the records, you're obligated to do so even if the case hasn't been filed yet. (Make sure you send copies, however, not originals.) Some unscrupulous attorneys may demand that you produce the records immediately, threatening to call you for a deposition if you don't. That's still no reason to comply before you have the patient's release.

If the attorney's demand for records seems unreasonable or excessive, your lawyer can try to limit the request by filing a motion with the presiding judge. If you feel that the patient could be harmed by the release of some personal information in her record, you may be justified in refusing to provide it. In such a case, however, you must explain to the judge your reasons for withholding the information.

If you're subpoenaed to bring medical records with you to a deposition, the patient's release may be unnecessary if the patient's lawyer is present, since he'll have an opportunity to object to their disclosure on the patient's behalf. If you're told to produce the records at trial under a court order, you're legally obligated to do so, even without a patient release. While you or the patient's lawyer may still object to their disclosure, the judge will decide the issue.

You may be able to avoid a personal appearance at a deposition or trial by sending certified copies of the records, or by sending them with a designated custodian such as your office manager. Again, however, be sure you have the patient's release.

You may also get a subpoena for medical records from an attorney representing a managed care plan. In that case, make sure the patient involved is actually a member of that plan. If not, the plan has no right to demand them. If the patient is a plan member, chances are she signed a general release—possibly without realizing it—when she enrolled, giving the plan access to her records.

Some companies may try to subpoena medical records of "problem employees," perhaps looking for evidence of drug or alcohol abuse, or sexually transmitted disease. Or the request may be more subtle, seeking a list of medications the patient is currently taking. In either case, your primary responsibility is always to your patient. Without his authorization, you have no right to release such information unless it's compelled by a court order.

Regardless of who subpoenas your medical records, you have a right to be paid for making the requested copies. Most states allow you to charge a "reasonable fee," typically $1 a page.

When you're called to testify

Sometimes a subpoena demands your testimony, not just your records. If that's the case, contact the attorney who issued the subpoena and attempt to work out a mutually convenient time for your appearance. Most attorneys will try to accommodate your schedule. You shouldn't have to travel beyond the county in which you live or work. In fact, ask to have your testimony taken at your own office if you feel you'll be more comfortable and won't be distracted.

If you're deposed as a treating physician—not as a defendant—you're entitled to payment for your time—generally by the attorney taking your testimony. In most jurisdictions, you'll receive a nominal appearance fee, your travel expenses, and possibly an amount equal to the value of your lost practice time. When you're deposed as an expert in the case, you can charge an expert witness fee. Depending on your location and specialty, those fees can range from $200 to $600 an hour, or a fixed amount for a half or full day. Once you agree to testify as an expert, however, you must show up. If you don't, you've breached your contract.

If you're subpoenaed to testify at a trial, the rules depend on whether you've been called as a fact witness or as a medical expert. When you're called as a fact witness, you must appear wherever and whenever the trial takes place, and you'll receive no fee. However, the attorney who subpoenaed you should be able to tell you which day you'll testify; and if your office is near the courthouse, he may be able to give you one or two hours notice before you're due. Otherwise you could sit through hours or even days of other people's testimony. If the attorney isn't cooperative, or makes unreasonable demands on your time, you can contact the trial judge (or his clerk) and ask him to intervene on your behalf.

When you're subpoenaed to testify as an expert witness at a trial (or a deposition), your rights are stronger. You can't be compelled to provide expert testimony; you must agree to do so. If you do, you're entitled to charge a reasonable fee for your services. You and the attorney who subpoenaed you should settle on the fee in advance. Once you agree to testify as an expert, however, you must appear in court when called.

When you're called to testify as a treating physician, your situation is more complicated. If you're merely recounting the treatment you provided and your thinking at the time, you may be considered a fact witness, and thus not entitled to an expert witness fee. In that case, however, you should limit your testimony to a factual account of your treatment, as recorded in the patient's chart.

If your testimony goes beyond such an account, and includes your current opinion of treatment rendered by other physicians, you may be considered an expert witness, and thus entitled to an expert's fee. Obviously, you should settle the scope of your testimony beforehand with the attorney requesting your appearance.

The author is an attorney with Kern Augustine Conroy & Schoppmann, in Bridgewater, NJ, and an editorial consultant to this magazine.

 

Steven Kern. You just received a subpoena. Now what?. Medical Economics 2002;22:43.