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Duty to Respond to a Subpoena Duces Tecum

Medical practitioners and health care record custodians may be served a subpoena duces tecum (subpoena) to compel attendance at the taking of a deposition or at a judicial hearing or trial, and to bring relevant documents. A subpoena can deal with hard copy and electronically stored information (ESI). So what do you need to do in order to comply with your duty to respond when you receive a subpoena duces tecum?

(This article only addresses subpoenas issued in lawsuits in which you or your practice is not a party; if you or your office is involved in a lawsuit and receive a subpoena in connection with that suit, please contact your attorney immediately.)

Subpoena Basics

A subpoena is generally delivered as a state Administrative Office of the Courts (AOC) form but must state the name of the court and the title or style of the action. It must be directed to the witness or record custodian. It shall command the person to whom it is directed to attend and give testimony at a specified time and place for a particular party. It must be signed by the officer, otherwise it would not be properly issued.

The subpoena should describe the records sought but routinely may be as broad as “a complete, certified copy of any and all medical/billing records pertaining to a specified patient.” The subpoena will direct a records custodian to appear for a deposition and to produce the requested records. It may also state that the records custodian can produce the records before the specified time in lieu of attending the deposition. A subpoena can be served by certified mail or by personal delivery.

What To Do When You Receive a Subpoena?

Upon receipt of a subpoena:

  • Immediately forward it to your risk management personnel, as a subpoena for medical, employment, or other records may indicate that a lawsuit is about to be filed.
  • Always refer to your office’s written policies regarding the use and disclosure of patient records to determine if the subpoena needs to be directed to a Health Insurance Portability and Accountability Act (HIPAA) compliance officer.
  • Finally, the subpoena should be forwarded to your office’s records custodian.

When medical providers receive a subpoena for patient information, HIPAA permits the disclosure of protected health information (PHI) provided certain procedural requirements are satisfied. PHI can be disclosed in response to a subpoena under the HIPAA “litigation exception” following confirmation that the requesting party made “reasonable efforts” to (1) notify the patient or (2) secure a “qualified protective order.” “Reasonable efforts” requires that a notice of the subpoena or intent was sent to the patient or his attorney, the patient had enough time to object, and no objection was made, or all objections were resolved. A “qualified protective order” limits the use of the records and directs that all the records be returned or destroyed at the conclusion of the litigation. If the subpoena does not meet these requirements, the records should not be produced until appropriate documentation is provided.

Certain “privileged” records receive special protection under state and federal law: HIV records, mental health records, psychotherapist notes, communications between your practice and any attorney representing that practice, evaluations prepared at the request of an attorney that would not have been prepared in the ordinary course of business, and (for skilled nursing facilities) material generated by the quality assurance committee. The witness may be required to produce such writings and tangible things as he or she controls even though the witness does not have actual possession of them. If a subpoena requests any of these documents, please consult the appropriate personnel. It may be necessary to ask your attorney for specifics on how to respond.

Producing the Records… or Objecting

If the record keeper receives no objection from the patient or other parties to the lawsuit and if she chooses to produce the records, she may ask for the reasonable expenses of producing what the subpoena commands from the requesting party. Once that payment is received, the custodian may certify the accuracy of the records and then forward them to the requesting attorney. If the records custodian opts to produce the records before the deposition date, then confirm if the requesting attorney will cancel that deposition appearance.

Alternatively, the custodian may decide that the records should not be produced and forward to the requesting attorney a written “objection” within ten days after the service of the subpoena, or on or before the scheduled deposition, whichever comes first. A timely written objection requires the requesting party to obtain a court order to set aside the objection in order to receive the records. If the practice does not produce the records but fails to send a timely written objection, the custodian may need to appear at the deposition. Additionally, the practice may be subject to contempt of court and other penalties.

It is important to issue a prompt, timely, and proper response to any subpoena. Therefore, it is critical that you, your records custodian, and your office staff be familiar with the pertinent duties, rules, policies, and procedures for responding to subpoenas.

This article is intended as a summary of how to respond to a subpoena duces tecum and does not constitute legal advice.

E. Douglas Stephan is a partner with Sturgill, Turner, Barker & Moloney, PLLC, working in healthcare law and medical malpractice defense. He can be reached at (859) 255-8581.