You’ve received a subpoena: What should you do?

Kenton H. Steele, Esq

At some point in nearly every practitioner’s career, they will be the recipient of some type of subpoena. Although being on the receiving end of a legal document stating that “you are hereby commanded” to respond in one form or another can be intimidating, knowing how to handle a subpoena response can alleviate some anxiety associated with being compelled to become involved in a legal proceeding. This column will explain the different types of subpoenas and best practices for responding to a subpoena.

What is a subpoena?

Subpoenas have been a component of the common law system as far back as the 14th century. In the simplest terms, a subpoena is a writ issued by a court or government agency to compel a witness to provide information. There are 2 types of subpoenas:

1. Subpoena ad testificandum, a writ ordering a person to provide oral testimony in response to questions at a deposition or trial

2. Subpoena duces tecum, a writ ordering that a person or organization produce physical evidence, usually documents, to the requesting authority or party

What separates a subpoena from a simple request for information is that a subpoena carries the authority of the court or agency from which it is issued, so a failure to respond could lead to serious repercussions. However, in the context of requests for medical records or other information obtained while providing care and treatment, a failure to consider privacy and other concerns could also lead to problems. As such, giving careful thought to when and how to respond to a subpoena is critical.

What to know about responding to a subpoena

In the context of medical professionals, the most common type of subpoena is a request for the medical and billing records for a patient whom you have treated. Although these types of requests are common, reflexively producing the requested records can be a costly mistake. It is important to remember that there is generally an obligation to protect the confidentiality of information derived from the doctor-patient relationship. Moreover, the unauthorized release of a patient’s records can result in civil penalties or a possible disciplinary action from the relevant licensing board. As such, it is crucial that a proper release be obtained before the release of any patient records.

A common situation in which complications can arise is when the request for records is made on behalf of the parent of a patient who is a minor. Issues often occur in divorce and custody proceedings in which the parents of the minor seek to use medical records to gain some type of leverage in their dispute with the other parent. However, it is often the case that only one of the parents has authority to authorize the release of the minor’s information. As such, it is strongly advised that you consult with an attorney with any questions concerning responding to even a seemingly simple subpoena for records.

The other type of subpoena to be aware of is the above-referenced subpoena ad testificandum—a subpoena for giving oral testimony in response to live questioning from an attorney. Here again, contacting an attorney to represent you with responding to the subpoena is strongly advised. Moreover, many liability insurance policies provide coverage for assistance with subpoena responses. If you are uncertain whether you have this type of coverage, contacting your insurer now, before a subpoena is received, may help things run more smoothly when a subpoena is received. Although being subpoenaed based on having been a treating physician for a party to a lawsuit may seem like a relatively low-risk endeavor, consulting with an attorney and allowing that attorney to interface with the other counsel involved in the case can help reduce the risk of becoming further embroiled in any pending legal action. Finally, having counsel review the subpoena can be critical in determining whether the subpoena is even valid and whether any direct response is necessary.

Depending on the type of subpoena you’ve received and the type of information you are asked to provide, you may be entitled to compensation for the time and expense associated with responding. The standards for the type of compensation available vary significantly in different jurisdictions and based on the type of information sought through the subpoena. Here again, this is an issue likely best addressed by your attorney.

Conclusion

As with most legal issues, there is no one-size-fits-all advice for responding to subpoenas. Although some subpoenas are more straightforward than others, carefully considering what response, if any, is required is critical for avoiding serious headaches that can stem from the improper handling of a subpoena response. Even when subpoenas seem routine, it is generally wise to have your own counsel or in-house legal team involved in overseeing the process of responding.