By attorneys Milton Kerstein and Andra Hutchins.
It’s happened—you received a subpoena for patient records from an attorney representing your patient. This is the first in a two part series. The second part will address the circumstance where you receive a subpoena or a request for records from your licensing board.
Now what do you do? First, don’t panic. Though daunting, subpoenas are manageable once they are understood.
A subpoena is usually a request to appear in court, or at a deposition, at a specific date and time. Subpoenas may also request an individual to bring specific documents, including patient records, with them when they appear. Subpoenas may also simply request patient records, without requesting an appearance at a hearing or deposition. Because subpoenas are not court orders, you do not necessarily have to produce the requested documents. Court orders are orders by a judge or a court, while subpoenas are generally requests from a litigant’s attorney, or the litigant him or herself. Even though a subpoena is not a court order, a subpoena recipient must still respond in some fashion.
What is the Subpoena Asking?
Your first step should be to consult with your attorney or, if you do not have an attorney, to find an attorney who specializes in representing practitioners. No request for records is simple, as every request for records brings with it certain legal obligations on the part of the practitioner. A misstep could have serious consequences. You should next review the subpoena with your attorney and determine what it is requesting you to do, and by when. Is the subpoena asking you to appear and testify about a patient? Is it requesting that you produce patient records? Who is requesting the documents? It is important to understand what is being asked of you, by whom, and by when, so that with the assistance of your attorney you can respond appropriately.
The Subpoena Requests Patient Records—Now What?
Have your attorney contact the attorney (or the party if the party is not represented by an attorney) who served you with the subpoena. Also, based on the advice of your attorney, either you or your attorney should reach out to your patient to determine if the patient wants you to release her/his records. Generally, only the patient can give you permission to release their records. If your patient is represented by an attorney in the lawsuit, have your attorney contact their attorney. If the patient is legally incompetent, contact their legal guardian.
If your patient wants you to release their records, request they provide you with a signed authorization. If your patient does not want you to release the records, it’s time for your attorney to determine whether you are compelled to do so.
There are few exceptions to the rule that you can release records only with patient authorization. HIPAA permits record disclosure if a court order for production of the records exists, or one of the parties has applied for a Qualified Protective Order. Massachusetts General Law 111 sec. 70 requires a hospital or clinic to disclose records for any party named in a proceeding as shown on the case caption appearing on the subpoena. Your attorney will advise you regarding any relevant statutes and determine whether any exceptions exist.
Options
At this point, you have familiarized yourself with the subpoena, and you know that you are not required to disclose the records, but you’re not sure how to proceed. One option is to have your attorney file a motion to quash. A motion to quash a subpoena is a request to the court to throw out the subpoena.
Alternatively, you can comply with the subpoena by appearing when requested and asserting the privilege. The judge will then determine whether or not the privilege exists, and either quash the motion or order you to further comply. The judge may also request to review the records in private to determine their relevancy to the case, and whether it is appropriate to release some or all of them into the court record.
Regardless of the subpoena, it is important to remember that your first duty is to protect your patient from harm. If you, in your professional opinion, believe release of the record would adversely affect your patient’s well being, you should immediately discuss your options with your attorney, one of which is to produce a summary of the record.
No matter what approach your patient would like you to take, you must address a subpoena in an appropriate and timely manner. If you receive a subpoena, do not hesitate to contact an attorney who can assist you.
Tips for Avoiding or Responding to Licensing Board Investigations – a Blog Series
Tips for Avoiding or Responding to Licensing Board Investigations is a series of blog posts written by attorneys Milton Kerstein and Andra Hutchins. In this series we provide practical advice for health care professionals including psychiatrists, psychologists, nurses, dentists, and social workers. Attorneys Kerstein and Hutchins have more than 35 years of experience representing health care professionals with licensing board investigations, disciplinary actions and responding to complaints from Massachusetts’ licensing boards. We represent individual practitioners, corporate providers and group practices.
Read other posts in this series:
