Mitchell Warner, P.A. - Medical Law Alert

Health Law Matters

DOCTORS: DON'T IGNORE SUBPOENAS UNLESS YOU WANT TO SPEND TIME IN YOUR COUNTY JAIL!

By Edward E. Hollowell and Kenneth A. De Ville, Mitchell Warner, P.A.

Subpoenas and doctors' schedules often clash. For example, Dr. Jones has his schedule completely filled for Monday when he receives a subpoena late Friday afternoon ordering him to appear in Court at 10:00 a.m. on Monday morning. Doctors claim, and rightfully so, that they are not provided sufficient notice to adjust their schedules when subpoenaed. Subpoenas in many cases not only disrupt doctors' schedules, but also inconvenience patients. Couldn't this problem be solved by requiring that subpoenas be served at least a certain number of days prior to the date on which doctors are required to appear? Perhaps so. Let's take a look at how subpoenas work.

A subpoena is a legal document issued by a court, an official agency or an authorized individual, in a criminal or civil lawsuit, an administrative proceeding or an investigation, requiring that a person or document be brought to a particular place at a particular time. The person receiving an authorized and properly prepared subpoena must comply with its terms under penalty of law. A subpoena, however, must meet a number of explicit requirements before it is legally enforceable, and the recipient should ensure that these stipulations have been satisfied before he complies. This Medical Law Alert will summarize some of the basic features of subpoenas and how they are used in the medical context.

Physicians and other health professionals frequently receive subpoenas in civil actions. State and federal courts, attorneys acting under court authority, Workers' Compensation boards and state medical boards and medical examiners possess the power to subpoena medical testimony or medical documents. Once a lawsuit is filed, a subpoena can be issued to collect evidence and information during the "discovery" phase of litigation. A subpoena may require that the physician-recipient personally appear to provide testimony at a deposition, a hearing or a trial, as a defendant, or as an expert or fact witness.

Fact witnesses testify about personal knowledge that they may have regarding the specifics of a particular case. Expert witnesses provide professional opinions based on their special training and experience that is not possessed by the jury. Because medical witnesses customarily testify as experts even when subpoenaed initially as fact witnesses, they are treated differently under North Carolina law. A physician who has been subpoenaed to testify at a deposition or trial as a "fact-expert" witness may be entitled to reasonable compensation for his or her time in preparation, conferences and testimony. In most cases, the "fact-expert" witness and the attorney who calls him may agree to any lawful method of payment.

In some instances, however, limits may be placed on reimbursement of medical experts. For example, according to N.C.G.S. 97-26.1, the North Carolina Industrial Commission can establish maximum fees for the presentation of expert testimony in Workers' Compensation actions. In any event, medical witnesses usually must be subpoenaed before a Court may award fees for their testimony. Thus, the subpoena not only protects the party who requires the testimony of the physician, but it is frequently the prerequisite for the collection of expert witness fees by the physician.

A special kind of subpoena, known as a subpoena duces tecum, requires the physician-recipient to produce (and sometimes to personally appear), at the designated time and place, documents or virtually any other tangible thing or object for inspection or copying by one of the parties of the lawsuit. In medical cases, a subpoena duces tecum can require that the physician or the custodian of record provide access to medical records, including x-rays or other test results, office calendars or any other physical record relevant to the subject matter of the pending action.

The subpoena must contain specific information, including the name of the court, the title of the action, the name of the party who is demanding the testimony or documents, the time and place at which the witness is directed to produce that evidence and appropriate signatures or Clerk of Court stamps. A subpoena is issued through the court in which the lawsuit is filed, but it ordinarily does not require a formal court order. According to Rule 45 of the North Carolina Rules of Civil Procedure, a subpoena for the purpose of obtaining the testimony of a witness may be "issued at the request of any party by the Clerk of Superior Court for the county in which the hearing or trial is to be held." While the Clerk exercising the power of the Court issues the subpoena, it is typically the attorney representing one of the parties that fills it out before it is delivered or "served" on the potential witness.

A physician or other health professional may be issued a valid subpoena even if he or she is not actually a party to the litigation. The attorney must simply have a reasonable belief that the subpoenaed party knows or has access to information relevant to the specific lawsuit. (Physicians, of course, are also required to honor requests for medical records made by attorneys prior to the filing of a lawsuit, if the patient authorizes the release of his or her records.)

There are technical requirements as to how the subpoena should be "served" or officially delivered to the potential witness. Subpoenas may be served by the sheriff, his deputy or any person who is not a party to the case. Under certain conditions, "service," or official delivery, of a subpoena to a witness may be made by certified registered mail or by telephone. However it is served, it is never wise to avoid the service of a subpoena; avoidance may trigger serious sanctions from the court. Moreover, attempts to prevent official delivery of the subpoena will invariably fail, as there is a variety of ways that a subpoena may be served on a potential witness.

Physicians should never comply with subpoenas demanding medical records, documents or testimony without first contacting an attorney or risk manager. It is important to recognize that physicians and other health care professionals may receive subpoenas that are invalid, that make overly-broad and unjustifiable demands, or whose terms are ambiguous. The fact that a Clerk of Court has issued a subpoena does not automatically guarantee its validity or the legitimacy of its demands for information, documents or testimony. The legal authority of the party, court or state agency issuing the subpoena should always be verified before complying with the demand. A subpoena does not automatically trump the patient's right to confidentiality. If a subpoena for medical records or other protected documents does not contain a valid, signed release from the patient, the physician should immediately contact an attorney or the institution's legal department or risk management division to ensure that a proper response is made.

That having been said, medical records are routinely subpoenaed by parties without explicit authorization from the patient and without a court order. This occurs most frequently in personal injury lawsuits. Such subpoenas may be legitimate. They must, however, meet strict criteria including, but not limited to, their delivery to the presiding judge (not the attorney who requested them) in a sealed envelope. In these instances, too, it is important to consult an attorney to ensure that both the disclosure and the manner of transmission are appropriately handled.

Even if a subpoena contains a signed release from the patient, the physician should contact an attorney, the institution's risk management office or the physician's or institution's insurance carrier as appropriate, so that they can coordinate and anticipate the course of future legal action. A release from the patient accompanying the subpoena should describe what information is to be released and to whom. A court may order the release of otherwise confidential patient information despite the lack of patient consent. The physician, however, should always rely on professional legal advice in order to ensure appropriate compliance with that order.

The physician should never ignore the subpoena, even if he or she suspects that it is invalid. Although a physician may question the validity or object to the terms of the subpoena, ignoring the subpoena or missing the designated deadline may result in a finding of contempt of court. This can lead to financial penalties equal to the expenses caused by the failure to comply, as well as of the costs of enforcement, including attorneys' fees. In some instances, the willful refusal to obey a subpoena may disqualify the physician from making what would have otherwise been valid objections to its terms. It may even, in very rare cases, result in imprisonment for noncompliance.

Although subpoenas should be taken very seriously and are valid until proven otherwise, a physician or other health care professional can object to or negotiate the terms of the subpoena for any number of reasons. A physician and his or her attorney might successfully petition a court to quash or modify a subpoena demanding privileged or protected information if the request is vague or over-broad, unreasonably burdensome, or if the information sought would not be relevant to legal action on which the subpoena is based. If the problem is one of scheduling inconvenience or insufficient notice or preparation time, the physician's attorney and the party demanding the evidence can usually negotiate an alternative time and/or place for compliance. If the schedule change cannot be resolved informally, then the physician through his or her attorney may petition the court to modify the terms of the subpoena.

Subpoenas are an increasing, but ultimately manageable, part of the physician's life. A physician can decrease some of the administrative burdens associated with subpoena compliance by appointing an efficient and competent custodian of records, who will be primarily responsible for complying with and navigating the sometimes confusing aspects of the release of medical records. It is important, however, to recognize that subpoenas come in all shapes and sizes, each with its own array of technical requirements and potentially unique factual circumstances. A qualified attorney will be able to guide the physician in making the most appropriate response to a subpoena, with as little professional disruption as possible.

Doctors should become proactive with regard to subpoenas. First, doctors should appoint an employee to serve as a medical records custodian. Secondly, doctors should develop, adopt and implement a suspense system to guard against allegations of noncompliance which could subject them to being held in contempt of court. Thirdly, doctors should request their professional society to lobby the legislature to amend the laws controlling subpoenas, to provide a minimum time between the service of the subpoena and the time that the doctor is required to appear in court. Lastly, physicians should call their counsel when they are served with subpoenas, so that they can appropriately respond to subpoena requirements.

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The Medical Law Alert is a publication of the Mitchell Warner Health Law Group. Its purpose is to provide general information about significant legal developments, and should not be construed as legal advice on specific factual scenarios. For more information on the issues discussed in this publication, please contact Edward E. Hollowell, JD, FCLM or Kenneth A. De Ville, JD, PhD, Co-Editors at (800) 662-7403.