A subpoena is a type of legal order that commands either the production of documents to be used in a court proceeding or the presence of a witness for a deposition or trial. Most of our clients routinely receive civil subpoenas requesting the production of medical treatment records which are gathered for medical malpractice and personal injury lawsuits. Of greater concern are subpoenas issued by governmental authorities, including the State Board of Medicine, the Pennsylvania Attorney General, and the U.S. Attorney’s Office. All subpoenas should be handled with due diligence.
Secure and Prevent the Changing of Records
It is important for a healthcare practice to have a routine for handling the receipt of subpoenas. Most providers have a formal document retention policy that provides for the maintenance, storage and orderly destruction of documents. It is critical to identify those records that are potentially subject to a subpoena and prevent such records from being destroyed. An appropriate representative of the practice should take possession of records that have been subpoenaed so that they will not be altered or destroyed and secure them for safekeeping.
Calendar Response Date
The provider should maintain a log that records the date and time when the subpoena was received and the date a response is due. An evaluation should take place to determine whether or not the subpoena can be handled in a routine fashion or there is a need to seek the assistance of legal counsel. Any criminal or governmental investigatory subpoena should be referred to experienced counsel. It is helpful for the provider to acknowledge to the issuer of the subpoena that it has been received and to indicate that it is being given immediate consideration. Providers should routinely ask the requesting party for additional time to produce documents and to confirm this extension in writing. It may be helpful to indicate that extra time is needed in order to retrieve records from a remote location due to staffing limitations and/or to obtain a legal review of the issues. If the subpoena requires a witness to attend trial it is often cost effective to have legal counsel make arrangements to minimize time out of the office.
Do Not Release Records Without Considering Valid Objections
In many cases, the material that has been subpoenaed is the subject of strict confidentiality provisions under state and federal law. An exception must exist before provider can safely disclose information in response to a subpoena. One of these exceptions may arise if the patient has provided a proper written consent to the release of information. The consent form can become complicated if minors, incompetents or estates are involved.
During the evaluation process, a healthcare provider should reveal as little as possible about the medical records to the issuer of the subpoena. If the issuer contacts the provider by telephone, the provider should avoid discussing the nature of the records with the lawyer who has issued the subpoena. An objection can also be made to a subpoena if the subpoena is unreasonable, intrusive or expensive to comply with. A subpoena may be limited by a court if disclosure of the information is embarrassing, burdensome, or discloses trade secrets or other confidential development or commercial information. On occasion, the issuer of a subpoena will try to use a subpoena that goes outside of the jurisdictional limits of the court issuing the subpoena. Providers should err on the side of protecting patient rights and this may mean taking an extra step to insure that the subpoena is valid in form and reasonable in scope.
Consider Privacy Interest of Patients
If a subpoena seeks to obtain medical records that contain confidential mental health information or highly sensitive information, the provider may have to file a motion with the court to object to the subpoena. Any records that relate to treatment and rehabilitation services for drug and alcohol abuse and dependence require special consent forms provided by the patient. The same caution must be applied to records that relate to infectious disease. The courts are also sensitive to an argument that in certain circumstances the release of certain information could interfere with the healthcare provider’s treatment of a patient, especially a minor. In these situations, the court may, upon request supported by good cause, fashion appropriate safeguards so that the healthcare provider can “redact” especially sensitive information from the records that are ultimately produced.
Producing the Material
The provider should use care to make sure that when records are produced, the provider can later demonstrate exactly which records were turned over to the party in response to the subpoena. It is recommended that the documents be numbered prior to copying, and the number of pages recorded with the subpoena log so that a reviewing court can determine exactly what was produced by which provider, at which time. If deletions are made from the records before they are turned over because of extra sensitive information, the records should show exactly the area where the deletions were made and a short explanation as to why the material was deleted.
Since subpoenas are a form of court order, healthcare providers need to use caution when responding to them because a court can sanction noncompliance by holding the non-cooperating witness or provider in contempt of court. A finding of contempt can result in fines or other sanctions. On the other hand, a provider needs to exercise caution when providing information because there are consequences for the improper release of information. The unauthorized release of mental health records may support a negligence action by a patient against a healthcare provider. In addition, healthcare providers may be sanctioned by their various state boards for releasing health information without obtaining the proper authorization and/or requiring a court order. The power and authority to secure records using a subpoena has been recognized by the courts as profound and one that must be exercised carefully.