Seven Tips for Handling Subpoenas
By Jamie W. Dittert, Member Attorney, Sturgill, Turner, Barker & Moloney, PLLC
Subpoenas are a common method of discovery in legal matters. Parties to a dispute will issue subpoenas to medical providers to learn more about the claims and defenses in the case. When you receive a subpoena, here are few things to keep in mind:
First, understand what it means. In most cases, a subpoena will request that your office or practice send copies of a patient’s medical records to an attorney. In legal terms, a subpoena commands a person to appear before a court. A subpoena duces tecum requires the person to bring a document, paper, or item for inspection by the court. Often, subpoenas to medical practices will state that an in-person appearance is not required if records are produced.
Second, review the who, what, when and where. The subpoena should tell you the basics about what records are being requested, the deadline for producing those documents, and where the records should be sent. If you have issues with, or questions regarding the subpoena, reach out to the law office that issued it for clarification. Some subpoenas may broadly request any and all records in your possession involving a patient; others may be limited to a specific time period or type of record (e.g., billing records, or medical records). Occasionally, your practice may receive a subpoena for employment records instead of medical records. The subpoena will also give you the name of the case in which your records have been requested. Please note, if you receive a subpoena in a case where you or your office is a named party, contact your attorney immediately.
Third, assess whether the subpoena meets the legal requirements for you to disclose the requested records. Depending on your practice, this may mean following a written policy, checking the documentation against a form, or sending it on to risk management, or an attorney.
Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the disclosure of medical records pursuant to a subpoena is only permissible if you also receive one of the following: (1) a court order permitting the disclosure of the records; (2) proof that the party seeking records has asked for a protective order that says the records will only be used for the lawsuit and will be returned or destroyed at the conclusion of the lawsuit; or (3) proof that the party seeking the records has given the patient notice of their intent to request the records, that the patient had enough information to object to the notice, and that the time for objections passed without an objection or that any objection was resolved by the court consistent with the production of the records. For the third category, often attorneys will send a notice of intent to subpoena records to the patient (or his or her counsel) before issuing the subpoena itself and will provide a copy of that notice with the subpoena with a representation that no objections were made. If there is no court order authorizing the disclosure of the records, and you are not sure whether the party that subpoenaed them has complied with (2) or (3), contact your attorney for assistance in responding to the subpoena in a HIPAA-compliant manner.
Fourth, take note of any special types of records that may be subject to additional protections under state and federal law. For example, records regarding AIDS and/or HIV testing have additional confidentiality requirements under Kentucky law. Other types of records that may be sensitive are mental health records, substance use disorder records for federally assisted programs, and psychotherapy notes. In most cases, the laws and regulations regarding disclosure of these types of records impose additional proof requirements beyond HIPAA the party that has subpoenaed the records must satisfy before your office can disclose them, if the law allows the records to be disclosed. If you do not have written policies and procedures to follow regarding when you can and cannot disclose these specific types of records, reach out to your risk manager or attorney to confirm what you are legally obligated to produce or not produce in response to the subpoena.
Fifth, if records that are the subject of a subpoena involve entities outside of your practice, they may not be discoverable. Any records in the scope of the subpoena that were prepared at the request of the attorney may be subject to legal privilege arguments like attorney-client or work product privilege. To determine if the records are privileged, please contact the attorney who requested that the records be created or your risk management or legal counsel. Likewise, the law has specific restrictions on what can be shared regarding a matter that has been reviewed by a Patient Safety Organization. A Patient Safety Organization allows medical professionals to engage in a productive and robust review of issues to promote patient safety, without fear that the records will be used in litigation.
Sixth, understand what to do if you do not believe you can produce the requested records under the law. If the requirements have not been met, send a written communication to the attorney who subpoenaed the records explaining why you cannot respond. The communication should be written or reviewed by a risk manager or your attorney. This written communication must be sent within ten days of receipt of a subpoena issued in Kentucky state court cases and fourteen days in federal cases. If the attorney believes you are incorrect, that attorney may file a motion with the court to address the deficiency or issue. Should a motion be filed, again, refer the issue to your risk management or attorney so that it can be properly addressed. If there is no response, your practice may be subject to court sanctions.
Finally, take a deep breath. There are pitfalls and nuances, and subpoenas can present complicated issues. However, in most cases, the subpoena will be properly documented, and you will need to pull together a patient’s medical records and bills. The key is to know which cases require the involvement of your attorney or risk manager. When in doubt, ask for help.