Physicians and physician practices receive subpoenas every day. A subpoena may require testimony in court or a pre-trial deposition, physical evidence such as medical records, or both.
A subpoena duces tecum means you are being asked to provide documents or records regarding the care of one of your patients. Often, the subpoena dictates a date and time by which you must submit the documents to the attorney’s office that is requesting them.
A subpoena ad testificandum means you are “invited” at a certain time and date to give testimony at trial or make a deposition.
If you are served a subpoena, contact your malpractice carrier. They will assign you an attorney who will review the subpoena to ensure it was properly served — either hand-delivered to you at your office or left with an employee in your office. In many states, if the subpoena is not hand-delivered to you, the attorney who issued the subpoena must also mail you a copy.
Your attorney will contact the attorney who issued the subpoena to verify that firm represents the person asking for the documents or for your testimony. From there, the process depends on the type of subpoena issued.
Request for Medical Records
The most common subpoena physicians receive is a request for patient medical records. Before complying with the subpoena, obtain a patient-signed HIPAA release form. The estate’s legal representative may sign the HIPAA release if the patient is deceased.
When one of the parties to a lawsuit serves you with a subpoena, they must notify *all* the other parties of the suit about what they are requesting. “Secret” subpoenas are not permissible.
Attorneys will demand the records by a certain date. If you are out of the office and unable to provide the records, the attorney will usually agree to extend the deadline to supply the requested documents.
What if you no longer have the documents requested? The most common reason not to have the requested documents is that they are older than the years required to keep the documents. That requirement varies by state as well as by the age or even type of patient. Pediatric patient records retention requirements are generally longer than those of adult patients.
For example, in New York, you must keep the patient records for at least six years. Even if it has been more than six years since you treated the patient, if you have the documents, you must provide them if they are properly requested through a subpoena and a signed HIPAA release.
California law requires the retention of medical records for seven years. In Kansas, the healthcare provider must keep the medical records for at least 10 years after the service was provided. Your health law attorney will know what applies in your state.
If you ignore the subpoena, the attorney issuing the subpoena can ask the judge to sign the subpoena. You can be found in contempt of court if it is still ignored, which may result in fines and imprisonment until the contempt is cured. Ignoring the subpoena can also affect your professional license.
In the Case of a Federal Subpoena
When the patient and the healthcare provider do not live in the same state, the subpoena can be brought in a federal court. The same is true if the plaintiff lives in another country.
What is discoverable in a federal action can differ from what is discoverable in a state action. For example, in a federal action for medical malpractice, the expert witnesses are usually subpoenaed and deposed before trial. In some states, such as New York, pre-trial depositions of medical experts are rare.
Additionally, if required to testify in person in a federal trial, a doctor who is not a party to the lawsuit, i.e., a prior or subsequent treating physician, cannot be required to travel more than 100 miles from their residence or office. In most states, in a state-based lawsuit, such a witness may be compelled to travel anywhere within the state.
Giving a Deposition as a Non-Party
Healthcare providers are often subpoenaed as a non-party in a health department investigation or a false claims act case. If you receive a subpoena from a district attorney, a U.S. attorney, or a state or federal administrative agency, do not attempt to answer it without legal counsel. You do not want to become a party to a criminal action or jeopardize your license. It would be best to have an experienced healthcare attorney represent you. Depending on the type of action involved, your medical malpractice company may cover your representation by one of their attorneys. You would be wise to accept their advice.
Depending on the state, your attorney may be unable to object during your testimony because a non-party has no official standing in the action. You can, however, confer with your attorney during breaks in the deposition.
When suing for medical malpractice, the plaintiff puts the patient’s medical care and treatment at issue. That means you are not violating the HIPAA law if you testify in a deposition or at trial about the care of a patient you treated.
Providing Expert Opinion
Finally, during your subpoenaed testimony at trial as a non-party, you may be asked questions that involve your expert opinion. This is a possibility if you are a prior or subsequent provider. You typically cannot be compelled to give an expert opinion at a deposition or trial if you are not a party to the lawsuit; however, you are not prevented from giving your expert opinion.
Retained expert witnesses may charge for their services. Answering questions without a prior fee arrangement allows opposing attorneys to use you as an expert “on the cheap.”
Bottom Line
Being served with a subpoena should not evoke fear and anxiety. Call your malpractice carrier or have a private, qualified health law attorney study the subpoena. What does it require? Was it properly served? Is it asking for appropriate documents or testimony? Let a professional guide you. When appropriately reassured and prepared, you may find the experience of complying with a subpoena to be interesting.