April 16, 2024
Responding to a Subpoena for Medical Records or Deposition
By Anne Flitcroft, RN
Physicians, practices, and medical groups frequently ask for advice about subpoenas and court orders requesting disclosure of protected health information in the form of medical records or through deposition testimony. The following information is designed to clarify areas of confusion regarding the subpoena process. Any recommendations in this article are for educational purposes only and not intended to be followed in all cases and are not medical or legal advice.
Subpoena and subpoena duces tecums
A subpoena is a formal process by which a party involved in litigation can compel testimony from a witness or the production of specific documents, medical records, books, papers, or other items relevant to the matter at issue.
There are two types of subpoenas: a subpoena and a subpoena duces tecum. A subpoena is a command to personally appear at a certain time and place to provide testimony, either in court or at deposition. A subpoena duces tecum (Latin for "bring with under penalty of punishment") is a type of subpoena compelling the production of specific medical records, books, articles, or other tangible things by a specific date.
Both types of subpoenas are a formal command and they should never be ignored. Failure to comply with the terms of a properly issued subpoena may result in a contempt-of-court citation and monetary fines, imprisonment, or other sanctions. It is important that you respond to any subpoena in a timely fashion.
It is standard procedure for a subpoena duces tecum to state that the records custodian is to appear at a certain time and place with records in hand to complete a records deposition. When your intent is to simply respond to a properly issued subpoena by mailing the records, make certain that you notify the attorney's office well in advance of the records deposition date so that the requesting party does not expect and plan for your personal appearance.
Subpoenas and court orders
There is a common misperception that only a judge can issue a subpoena. In fact, a subpoena may be issued by a court, an attorney of record, or a governmental agency, such as the Department of Health or the Department of Labor & Industries. The HIPAA requirements for disclosure of PHI in the course of a judicial or administrative proceeding differ depending on whether the disclosure is requested pursuant to a (1) court order, or (2) a subpoena or discovery request. A court order is a subpoena or other order of a court or administrative tribunal signed by a judge or magistrate.
Most requests for PHI that practices and medical groups receive are subpoenas signed by attorneys (not court orders), which means that specific criteria must be met before releasing the PHI requested in the subpoena. These criteria can include providing a valid written authorization, proof of notice to the patient and/or a protective order. If you are uncertain regarding the production of PHI in response to a subpoena or court order, please contact your carrier for assistance.
Charging copy fees
You are entitled to charge the allowable copy fees as you would with any other request for records. HIPAA permits charging a reasonable, cost-based fee for copies and for summaries and explanations of the record. The fee may include only labor costs for copying PHI, not any cost of retrieval, plus costs of supplies for paper copies or electronic media if requested, such as flash drives and compact discs, plus postage costs if the practice or medical group is requested to provide the copy through the mail or by courier. The requesting party must agree in advance to any fee for explanations or summaries of the record. Maintenance and capital costs may not be included in the fees charged.
Note that the allowable copy fees and charges for producing the copies may be further limited by state law, so we recommend that you consult legal counsel to determine whether any state law limits apply to you.
Subpoenas in criminal vs. civil matters
State law often specifies an advance notice requirement that requires attorneys requesting disclosure of PHI pursuant to a subpoena in a civil matter to provide advance notice to the physician and the individual whose PHI is requested (or the individual's attorney) that the subpoena request is forthcoming, with the purpose of allowing the individual or physician an opportunity to seek a protective order from the court to prevent the disclosure from taking place.
However, in a criminal case there is no such advance notice requirement. In a criminal case, your records or testimony may be subject to subpoena on very short notice without any advance notification. It is important that you notify our office (or your medical professional liability carrier, if you are not insured by Physicians Insurance) immediately if you are served a subpoena in a criminal matter so that, if necessary, we can assist in a timely fashion on your behalf.
Subpoenas for deposition testimony
If you receive a subpoena for deposition testimony, it is important that you contact your medical malpractice carrier to discuss the underlying matter and obtain tips on safeguarding your interests. It is very common for a treating physician or clinician to be subpoenaed for testimony as a fact witness when the patient is involved in an underlying personal injury case. Generally, this type of testimony should cause you little concern and does not require representation by counsel.
However, the potential always exists for unexpected surprises during questioning. If at any time during the deposition you become uncomfortable or alarmed with the nature of the questioning, we recommend that, while still on the record, you make a request to discontinue the deposition and indicate that it is your desire to seek advice of legal counsel before proceeding further.
If you receive a subpoena for deposition testimony and you are concerned or unsure about the purpose for the deposition, contact your carrier to determine whether assignment of counsel for deposition representation is necessary.
Out-of-state subpoenas
Carefully examine any subpoenas you receive. If the subpoena is from a court in another state, it is likely not valid in your state.
Never hesitate to contact your medical malpractice insurer if you have questions about subpoenas or any other medical liability issue that causes you concern.
Anne Flitcroft, RN, BSN, is associate vice president of risk management at Physicians Insurance.
This article was featured in the March/April 2024 issue of WSMA Reports, WSMA's print magazine.