Subpoenas may occur in either a civil or criminal setting. Claims of negligence (i.e., cases involving malpractice allegations) will be in civil court.
Subpoena for Testimony
A civil subpoena may seek you or someone in your office for testimony (such as in a deposition). A notary public or a court reporter may issue this type of subpoena, but if you are being summoned to testimony at trial, the court clerk will issue the subpoena. The details of what you must do to comply should be evident on the face of the subpoena.
Subpoena of Medical Records
Another type of civil subpoena is a "subpoena duces tecum," which seeks copies of your medical records. You likely will be asked to provide an authenticating affidavit for these records; if you are concerned that you cannot confirm the records are "true and correct" (such as when you must produce records created by another provider), you should contact your liability insurance carrier.
Obtaining Patient Permission
When complying with a subpoena, you do not need a patient's permission to release medical records if the patient is a party to the suit. Often, however, it is not clear that the patient is a party, and/or you may be concerned about sensitive information included in the records. In these situations, it is always preferable if the patient provides you a written release.
If you can not obtain the patient's written permission, you may ask the requesting attorney for written assurances from the requesting party that your patient has received proper notice (e.g., you get a signed medical record release).
HIPAA permits you to follow state law in responding to subpoenas but also requires that:
- You receive adequate assurances that your patient has been put on notice by the requesting party (e.g., you obtain a written statement and documentation), or
- The requesting party demonstrates having made a reasonable attempt to get a protective order (e.g., by providing you a copy of a court order or stipulation), or
- You yourself obtain an appropriate written patient release.
Failure to respond to a subpoena may result in an "order to produce," an "order to show cause," and even an accusation of contempt of court. You must, therefore, address problems with subpoenas in a timely fashion. Contact your carrier if you cannot get sufficient permission from the patient and/or assurances from the attorney involved.
Criminal subpoenas in Texas will be issued by the court and almost undoubtedly will require that you provide your original record, not a copy. Make a copy for your office before you release the original.
The bottom line with subpoenas is this: You will never go wrong getting the patient to sign a proper written release.
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