Rule One: Do not ignore a subpoena.

Rules for responding to subpoenas
By Phyllis Garrison, Esq.

Published January 2000

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Lawyer’s yore in Indianapolis, Indiana has it that there was an infamous physician who absolutely refused to honor a subpoena and testify at court. The judge would send the sheriff to fetch Dr. "No." But the presence of the law did not even slow the good doctor down. He would lock the front door and bolt out the back, escaping in his car. Naturally, this ploy only worked once or twice. Eventually the sheriff learned to post a deputy at the back door. Dr. No was collected and taken to court to testify. It is told that once on the witness stand, he was a cooperative and knowledgeable witness.
Recently a young psychologist was served with a subpoena for a minor patient’s mental health record. In deference to the duty to hold the patient’s mental health record confidential, she refused to supply the record. The attorney seeking the record sent her an authorization for release of the record signed by the patient’s father, the non-custodial parent. She sought the legal advice of lay persons and an attorney for her insurance carrier. Everyone advised her not to release the records until the court so ordered.

The attorney scheduled a hearing on the matter. At the hearing the judge found the psychologist in contempt and ordered her to pay $700 in legal fees to the attorney seeking the record, for forcing him to request and prepare for a hearing on the matter unnecessarily. The law in the state in which the psychologist practiced stated custodial and non-custodial parents have equal access to his/her child’s health records. A health care provider was bound to release the child’s mental health records when served with the father’s authorization. Ignorance of the law was no excuse.

Physicians rightly complain that they are served with subpoenas for court testimony with little or no warning and without consideration of the physician’s obligation to his or her scheduled patients. Further, physicians are often asked for health records without proper authorization, forcing a decision to withhold the records, violate the patient-physician privilege of confidentiality, or consult an attorney. If the wrong decision is made, the physician risks contempt orders or a lawsuit filed by the patient. Some situations are complicated and will require advice of counsel. However, what follows are three simple rules which when put to use, will allow the physician to assess the situation and proceed in a lawful manner sometimes without consulting legal counsel.

Rule One: Do not ignore a subpoena. If properly issued and served, a subpoena has the full force of the law behind it. The first step is to determine whether you have a proper subpoena or a court order. A subpoena is a piece of paper, often a form, which is signed or stamped by the clerk of court or an attorney. Almost anyone can obtain a form subpoena stamped with the court clerk’s signature. An attorney can create a subpoena on a word processor. A subpoena differs from a court order. A court order has a case or cause number in the heading, is signed by a judge and is usually stamped "Filed," with the file date. It is important to know the difference in order to assess how to proceed. Courts have generally held that "bare" subpoenas are insufficient to obtain confidential medical records.

The next step is to determine whether the subpoena was properly served. In order for the service to be ironclad, it should be handed to the physician by a sheriff or other officer of the court. Then and only then can the person who served the subpoena testify in court that the physician received it. However, many subpoenas are served by regular or certified mail sent to the physician’s office. Someone other than the physician signs the return receipt. Arguably, at that point, no one can prove that the physician actually received the subpoena if the physician states he did not receive it. However, once the physician has actual knowledge of the subpoena, he would be committing perjury if he stated under oath that he did not receive it. The best course when a subpoena comes into one’s hands is to deal with it.

Rule Two: Do communicate and cooperate. Much time and frustration can be saved if the parties talk to one another. Ideally, the attorney should call the physician prior to serving a subpoena, talk to him or her about what testimony can be anticipated and make arrangements for dates and times that are as convenient as possible for the physician to appear at the trial. Unfortunately, many times lawyers serve first and talk later. One wonders at the wisdom of such behavior because it most likely will alienate the physician witness whose cooperation the attorney needs. To be fair, there are times and circumstances when the attorney cannot contact the physician prior to serving the subpoena, such as in the case of emergency hearings or a last minute discovery that the physician’s testimony is needed.

When the attorney has not contacted the physician, the physician should call the attorney. Perhaps the physician does not have the information the attorney seeks or cannot give an opinion that would be favorable to the patient’s case. The attorney may voluntarily withdraw the subpoena or excuse the physician from testifying. Inquire as to whether the patient’s records can be used instead of the physician’s testimony. Attorneys can stipulate that the patient’s records will be part of the court’s record, making the physician’s presence to introduce those records unnecessary.

Many times the attorney can and will arrange for the physician’s testimony to be taken in the form of a video deposition. This deposition can then be played in court for the judge or jury in lieu of the physician’s presence. Taped testimony allows for flexibility in the trial schedule and prevents multiple appearances if the trial is postponed at the last minute. If a video deposition is not possible, the physician can negotiate the most convenient time for his or her appearance. If the physician is truly unavailable for the hearing or trial, this should be communicated so that a continuance can be sought.

Cooperation takes all parties. If the matter cannot be resolved, then the physician may be forced to take legal action to have the subpoena quashed or the matter continued. An attorney can file an objection to the subpoena for several reasons, some of which will be discussed later. It is possible to have a subpoena quashed for the reason that it is unduly burdensome or unreasonable. This is often the case when the physician’s testimony is required in two days and he or she has scheduled patients or surgery.

Rule Three: Always consider the confidentiality of the patient’s records. The physician-patient privilege against disclosure of information the physician obtains as a result of the physician-patient relationship is ancient. This privilege belongs to the patient. However, the physician has the legal duty to invoke the privilege on behalf of the patient. It includes both written and unwritten information. A subpoena does not overcome the patient’s right to confidentiality. Therefore, whenever a physician receives a subpoena for records, (sometimes called a subpoena duces tecum) or for an appearance and testimony about the patient, the first consideration is whether the patient has consented to the release of the information sought. Even if the patient’s own attorney has requested the information, the physician must first be satisfied that the patient has consented to the disclosure.

The best way to verify that the patient consents to the physicians disclosure of information, in spoken or written form, is by obtaining an authorization for release of the information signed by the patient. This authorization should state specifically what information is to be released and to whom. It is also helpful if the release states the purpose of the disclosure. A physician can be assured that the release is intended to cover court proceedings if it states that, "the information is to be released to my attorney for use in my lawsuit against X." However, if the physician is only directed by the release to give the information to an attorney, the physician is not responsible for what the attorney does with that information.

A physician may obtain the consent of the patient verbally. This conversation should be recorded in the medical record at or near the time it occurs. State laws contain exceptions to the need for a patient’s release, i.e., in the case of child abuse or a grand jury investigation. An attorney may need to be consulted as to whether the subpoena falls into an exception to the need for a patient’s consent or court order. Further, a court may order the physician to release information about a patient, in spite of the patient’s objection. Such a determination would be made by a judge after review of the relevancy of the records to the lawsuit or, in the case of mental health or dangerous communicable disease information, after a hearing on the matter.

If a physician has not been satisfied that the patient consents to the release of confidential information, he or she should raise the issue in court before any questions about the patient are answered. At times the judge will consider the matter immediately and order the physician to proceed to testify. In such an instance, the physician must honor the judge’s order. If the subpoena is for records and the physician does not have his patient’s consent to release the records, the only way the physician can raise that objection is by filing it in writing with the court. Most often an attorney should be consulted to file a motion to quash the subpoena for lack of the patient’s authorization to release the records.

Note that in the case of written records, the subpoena or accompanying court papers may give a deadline for production of the records or filing of an objection. If no date for production is given, the physician usually has 30 days to produce the records or file an objection.

There is one other important point about written records. In the case of health records other than mental health, substance abuse or dangerous communicable disease records, the subpoena may be served with a motion to produce and an order for production signed by a judge. If these last two documents accompany the subpoena, the records may be produced without the patient’s consent. This means that everyone in the lawsuit, including the judge, has had notice of the request, no one has objected, the court has considered the matter, and ordered the release of the records. The only thing worse than ignoring a subpoena is ignoring a court order.

If the records sought are those for treatment of alcohol or drug abuse, they are not to be released without the patient’s consent or a court order issued after a hearing is held on the matter. The release of alcohol and drug abuse records is governed by federal law. Mental health records and those concerning dangerous communicable diseases may also require a court hearing to determine whether the records should be released without the patient’s consent. State laws differ as to the procedure to be followed, but most states require more than a subpoena or even a court order, issued without a hearing, in order to release these kinds of health records.

These rules and comments are not meant to exhaust all issues that may arise with respect to subpoenas and other requests for confidential records. State laws vary. The facts of any given situation are unique and may not have been anticipated here. They are, however, a practical start.

Phyllis Garrison, Esq., is a member of Bose McKinney & Evans’ Health Law Practice Group in Indianapolis, Indiana

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