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Subpoenas

Overview | Clinical Scenarios | Additional Tips | References
By Jacqueline Landess, MD, JD

OVERVIEW

Definition

A document issued by a judge, grand jury, government/law enforcement agency or an officer of the court requesting or mandating:

  • Testimony (subpoena ad testificandum) and/or
  • Production of documents (subpoena duces tecum) in a civil or criminal matter.

Jurisdictional Considerations

Generally, a subpoena from one state cannot compel disclosure from a person who resides in another state.

CLINICAL SCENARIOS

Scenario #1: You receive a subpoena stating that you must come to the courthouse in 30 days prepared to give testimony and to bring all medical records related to your treatment of a patient. The patient is in a contentious custody battle with his wife.

Scenario #2: You receive a subpoena duces tecum stating that you must send your psychotherapy notes to an officer of the court by a specified date. Your patient is a public official being charged with bribery and extortion.

In both cases (1,2):

  •  Carefully read the subpoena and the signature.
    • If it is only signed by an attorney and/or court clerk it is not a court order.
      • This means you may not have to automatically release records or testify.
    • If it is signed by a judge or grand jury, this is a valid court order.
  • Notify the patient of the subpoena
    • The patient may seek to have it quashed (voided) on various grounds. The patient can assert privilege (see Privilege).
    • The patient can authorize disclosure. If so, obtain explicit written consent before releasing records or testifying.
  • Consult with your malpractice carrier, supervisor and/or risk management representatives to inform them of the subpoena and ensure you are complying with both state and federal law regarding confidentiality.
    • They may challenge the subpoena (overbroad, burdensome)
  • Respond to the subpoena in writing by the date specified confirming receipt.
    • Failure to respond could result in contempt of court
  • Clarify the scope of the subpoena. A subpoena requesting “the medical record” may be overbroad and your attorney may be able to limit the scope. Remember that mental health and substance records usually have increased protection under HIPAA or state confidentiality law.
    • In some instances, HIPAA permits release of PHI in response to a valid subpoena without a signed patient authorization if reasonable efforts have been made to notify the patient. You must consult your state law first, however, because if it is more restrictive (protective) this will usually trump HIPAA (3,4). (see Confidentiality/Privacy)
  • If you must comply with the subpoena (i.e., testify or produce medical records) you may still:
    • Object to the disclosure “on the record” once in court
    • Ask that certain information from the record not be disclosed due to harm to the patient.

Special Considerations

  • Ensure you are complying with legal directives while minimizing harm to the patient and complying with relevant federal or state confidentiality laws
  • Unauthorized release of records could result in a civil lawsuit, HIPAA violation and/or a disciplinary action by the state medical board
  • You may charge a reasonable fee to make copies of records
  • You may ask for a reasonable fee if appearing as a fact witness. You cannot be compelled to testify as an expert witness.

ADDITIONAL TIPS

Your response to a subpoena for records should be documented in the patient’s record, including what materials were released, to whom they were released, and when.

REFERENCES

  1. Mossman D. You’ve been served: what to do if you receive a subpoena. Current Psychiatry. 2015, 14(2) 33-36.
  2. Kern S. You just received a subpoena. Now what? Medical Economics. November 2002. Last accessed on January 20, 2020 at: https://www.medicaleconomics.com/practice-management/you-just-received-subpoena-now-what.
  3. Zwerling A., et al. To disclose or not to disclose that is the question: issues to consider before responding to a subpoena. J Am Coll Radiol. 2012, 9(4) 279-81.
  4. U.S. Department of Health and Human Services. Health Information Privacy. Last accessed on January 31. 2020 at: https://www.hhs.gov/hipaa/for-individuals/court-orders-subpoenas/index.html.
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