Subpoenaed?

(Condensed from Medical Economics, 11/17/06)

Every physician will occasionally receive a subpoena to provide copies of medical records and give testimony concerning care they have provided. If subpoenaed, don't panic. It doesn't necessarily mean that you are being sued. However, regardless of the reason behind the subpoena, handle it very carefully.

Here are some guidelines:

If you are being sued for malpractice, contact your malpractice carrier immediately upon receiving the subpoena. Also notify your carrier if you are subpoenaed for an existing case, usually by way of deposition, and you believe your testimony could implicate you. You carrier will probably appoint an attorney to review the case, assist you with your response, prepare for the deposition and represent you when testifying.

Note that if you don't notify your carrier and your testimony or other information implicates you in a liability case, your carrier could deny coverage if you are ultimately sued.

Depending on state and court regulations, your obligation to comply with a subpoena depends on whether the document has been properly issues, signed and served. You or your attorney should determine what court or agency is involved and whether the matter is a civil or criminal case. Providing information or testimony to an invalid subpoena, or one that improperly seeks privileged information, could lead to serious problems if you breach physician-patient confidentiality or a patient's right to privacy. You may even need to obtain a HIPAA-compliant patient consent to release records or information or alert the patient to the subpoena so the patient has an opportunity to object.

If a patient has not been notified, or objects to the release of information, you should not comply without a court order – and a subpoena is not a court order! (Check with your attorney regarding potential exceptions relating to subpoenas from state licensing boards or other government agencies.)

Also determine whether you are being asked to provide "expert" testimony. While you can be subpoenaed to provide "fact" testimony, you generally cannot be compelled to give expert testimony. If you expert opinion is being sought, you have the right to be paid for that opinion.

Your time is valuable and testifying in legal proceedings can take up large chunks of time. If the time or place on the subpoena is not convenient, ask the issuing attorney to change it. If you are required to testify before a court or other tribunal, ask the attorney to place you on a two-hour notice.

Work with your attorney to develop a standard policy and procedure for dealing with subpoenas. Once that policy is in place, you will not need a legal opinion in every future instance.