What to Do When You’re Caught in the Middle
Q. My patient is a plaintiff in a personal injury suit. The defense has issued a subpoena for medical records, but my patient, the plaintiff, has instructed me not to release them. When I told this to the defense attorney, he said I could be held in contempt of court for not obeying the subpoena. My patient's attorney has threatened to sue for unauthorized release of confidential information if I do obey the subpoena. What's a physician to do?
A. The court provides a way to challenge the validity or scope of a subpoena without making threats. Your patient's attorney should file a "motion to quash subpoena" and/or a "motion for protective order." That way the trial judge can rule on the attorney's objection, which usually is based on confidentiality grounds.
However, if the plaintiff's attorney declines to file a motion, you still have to respond in some way. You should immediately call your own legal counsel, who will contact the opposing parties and try to determine what the problem is. Your lawyer may have to challenge the validity of the subpoena independently by filing a motion to quash subpoena and/or for protective order. Although not common, this is done sometimes in litigation, particularly where a party to suit doesn't want certain things discovered but is prohibited from directly objecting to that discovery. If this happens, your lawyer can ask for the court to award you attorney's fees.
For more information, read " Subpoenas for Medical Records Questions and Answers " from the TMA Office of the General Counsel.