Subpoenas and How to Handle Them

Friday, September 22 2023

As a healthcare provider, you may be subpoenaed to turnover healthcare records or testify in a legal proceeding involving a current or past client. Read through this article to learn more about subpoenas and how to handle them in the event that you encounter this in your practice. Note: While we are always happy to provide valuable education and information, SonderMind does not compensate providers for testifying in or producing documents for legal proceedings.

What is a subpoena?

A subpoena is a legal document that summons a person (or entity) to testify as a witness at a specified time and place (like a deposition, trial, or other hearing). Subpoenas could also serve to request documents or other tangible objects in a legal proceeding. Because subpoenas are time-sensitive with court-imposed deadlines, handle these requests quickly and with care to avoid penalization. 

Why am I being subpoenaed?

There are a few scenarios in which you may be subpoenaed. Let’s take a look at these and what they mean.

  1. The most common scenario is to testify as a treating expert witness on one of your current or past clients. For example, your client may be seeking damages from a third party in a personal injury lawsuit. Attorneys may depose you to learn more about the nature and scope of the injuries you treated.
  1. It’s also possible that you may be contacted to serve as a retained expert witness who offers their expert opinion on a variety of matters including causation, the standard of care, and diagnoses. In a malpractice case, you may be asked to offer an opinion about the adequacy of another provider’s treatment. In a criminal case, the defendant may seek your expert opinion about his/her diagnosis to make an insanity plea. 
  1. Finally, the third scenario involves being contacted to serve as a fact witness. For example, if one of your clients commits a crime, attorneys may wish to speak to you to learn more about your client’s motives and plans.

Do I have to respond to the subpoena?

You may be held in contempt of court if you fail to respond to a subpoena. Punishment may include monetary fines and even imprisonment (although this second one is unlikely). However, you may be able to dispute whether a subpoena is legally valid under a claim of privilege. The issuing court/agency has broad discretion to determine an appropriate punishment given the circumstances presented.

Does State Law allow me to disclose privileged or confidential information when responding to a subpoena?

Generally, disclosing privileged or confidential information about a client is not permitted unless a court specifically orders disclosure, the person who is the subject of the records consents to the disclosure, or the applicable law makes a specific exception to privilege and confidentiality under the particular circumstances. 

Please note that some states may place additional restrictions on the scope of disclosure of confidential or privileged information. 

What is the difference between confidential and privileged information?

Confidentiality refers to the provider’s ethical obligation to keep patient information private. Privilege, on the other hand, is the patient’s right to bar the release of their health information in legal situations.

Does HIPAA allow me to disclose protected health information (PHI) when responding to a subpoena?

A provider may disclose information to a party issuing a subpoena only if the notification requirements of the Privacy Rule are met. Before responding to the subpoena, first ensure that reasonable efforts were made to:

  1. Notify the person who is the subject of the information about the request, so the person has a chance to object to the disclosure, or
  2. Seek a qualified protective order for the information from the court.

In contrast, a provider may share PHI about a client if a court order mandates disclosure. This includes the order of an administrative tribunal. However, the provider may only disclose the information specifically described in the order. See Court Orders and Subpoenas.

Am I entitled to compensation as a witness?

Witness compensation rules vary by state. However, in general, expert witnesses are entitled to “reasonable” compensation for their time spent preparing to testify and for testifying. In most states, treatment witnesses are considered experts and are therefore entitled to compensation. Fact witnesses are not entitled to compensation. However, the court may offer a small stipend and reimburse your expenses. SonderMind does not offer providers any compensation for producing records or serving as a witness.

When should I seek legal counsel?

It’s possible that your testimony could be used against you in future legal proceedings. For this reason, you may wish to seek legal counsel. Legal counsel can assist with:

  • determining the appropriate scope of your response to a subpoena 
  • OR if you’ve been subpoenaed as a treatment witness and you believe your treatment may have been inadequate or negligent

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