Responding to Subpoenas

Because medical information is central to many lawsuits, medical providers and hospitals frequently receive subpoenas to provide medical records. This article sets forth some considerations for properly responding to a subpoena for medical records.

Why Am I Getting a Subpoena?

A subpoena is a demand for documents or testimony in connection with an already-existing legal proceeding.1 This article will focus on the subpoena duces tecum, which demands documents. Subpoenas are most commonly issued by one of the attorneys involved in the case, by a clerk of the court or by the judge presiding over the matter.

There are two types of subpoena duces tecum: trial subpoenas and discovery subpoenas.

Medical records to be used at trial must be certified copies. Trial subpoenas demand that the records be certified by “the superintendent or head of hospital, department or bureau or his assistant, or the officer.”2 Records must be delivered to the presiding court in a sealed envelope, indicating the title of the action, the date set for production, and the name and address of the issuer of the subpoena. In return, the clerk provides a receipt for the records and notifies the person subpoenaed when they are no longer required.

Discovery subpoenas are typically issued by attorneys who think a patient’s medical records will be useful to their case. There are no certification requirements for a response to a discovery subpoena; you may simply send photocopies of the requested records to the issuing attorney.

What Should I Look For When Reviewing a Subpoena?

The top of the first page of the subpoena contains a caption that states the name of the presiding court, the names of the parties involved and an identifying number. The subpoena will also state to whom it is directed and which records it seeks. The subpoena will provide a deadline for production of records and the place to where records should be sent. Documents will typically be sent to the presiding courthouse or to the office of the attorney who issued the subpoena.

Note where the subpoena is from. Subpoenas issued pursuant to an out-of-state court action and subpoenas issued by an out-of-state federal court may require additional attention to ensure they are valid, and you should contact counsel upon receipt of such a subpoena.

How Long Do I Have to Respond?

The issuer of a trial subpoena must only provide three day’s notice, although a court can order a shorter period. Discovery subpoenas do not have a required timeframe, but the issuer generally provides a reasonable deadline, depending on the circumstances of the case — between twenty and thirty days is typical. If you doubt your ability to meet the production date, contact the issuer, and you may be able to agree upon a different date.

What About Protected Health Information?

Protected Health Information (PHI) includes, among other things, a patient’s unique identifying information and his or her medical history. It is subject to HIPAA protection, and it is the obligation of the provider responding to the subpoena to ensure the subpoena complies with HIPAA before responding to it. Most commonly, the subpoena will be accompanied by an authorization from the patient or the patient’s legal representative, which permits disclosure of their PHI via the subpoena response.

New York State statue provides that any subpoena for medical records must be accompanied by the patient’s signed HIPAA-compliant authorization, and it relieves the medical provider of any obligation to respond or object where the subpoena is not accompanied by a written authorization from the patient, which states in conspicuous bold-faced type that the records shall not be produced unless the subpoena has been accompanied by a written authorization from the patient.

Be aware of the contents of the requested records. HIV/AIDS information is subject to additional protection. If the requested records contain HIV/AIDS information, the patient must specifically authorize the disclosure of such information. Moreover, your response to the subpoena must include a statement prohibiting re-disclosure, the language of which is provided by New York Public Health Law § 2782(5). Other types of sensitive PHI, such as mental health and drug and alcohol information, also enjoy additional protection.

Receipt of a subpoena commences a potentially complicated response process. However, involvement with litigation is a fixture of medical practice today, and it is important to proceed in accordance with the applicable laws. When you receive a subpoena, read it carefully, and when in doubt, contact legal counsel.

Article originally appeared at: MD News July/August 2015, Central New York Edition