How to Handle a Subpoena Duces Tecum

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LEXINGTON Medical practitioners across Kentucky are all too familiar with the following scenario: an official-looking document comes into the office, someone signs for it, and inside you find a paper with strange words: “Subpoena Duces Tecum.” Congratulations, you have been subpoenaed! So what does that mean? A “subpoena” is a paper that commands a person to appear before a court. A “subpoena duces tecum” compels an individual to appear and bring with him certain records. This article is intended to provide an overview of what to do when you receive a subpoena duces tecum. (This article only addresses subpoenas issued in lawsuits in which you or your practice is not a party. If you or your office is involved in a lawsuit and receive a subpoena in connection with that suit, please contact your attorney immediately.)

What information is contained in a subpoena duces tecum (hereinafter “subpoena”)? The subpoena should describe the records sought, which may be as broad as “a complete, certified copy of any and all medical/billing records pertaining to Jane Doe.” A subpoena must also identify the lawsuit to which it relates and the contact information for the attorney or party who issued the subpoena.1 Finally, the subpoena will direct a records custodian to appear for a deposition and to produce the requested records. It may also state that the records custodian can produce the records before the specified time in lieu of attending the deposition. A subpoena can be served by certified mail or by personal delivery.

When you receive a subpoena, forward the details to your risk management personnel first, as a subpoena for medical records may indicate that a lawsuit is about to be filed. Then, refer to your office’s written policies regarding the use and disclosure of patient records to determine if the subpoena needs to be directed to a Health Insurance Portability and Accountability Act (HIPAA) compliance officer. Finally, the subpoena should be forwarded to your office’s records custodian.

Under HIPAA, any subpoena duces tecum that is not accompanied by a court order must contain a written statement and accompanying documentation demonstrating that the requesting party made “reasonable efforts” to (1) notify the patient whose records are being requested, or (2) secure a “qualified protective order.” “Reasonable efforts” means that a notice of the subpoena was sent to the patient or his attorney, the patient had enough time to object, and no objection was made or all objections were resolved. A “qualified protective order” limits the use of the records and directs that all of records be returned at the conclusion of litigation. If the subpoena does not meet these requirements, the records should not be produced until appropriate documentation is provided.

Certain records receive special protection under state and federal law: HIV records, mental health records, psychotherapist notes, communications between your practice and any attorney representing that practice, evaluations prepared at the request of an attorney that would not have been prepared in the ordinary course of business, and (for skilled nursing facilities) material generated by the quality assurance committee. If a subpoena requests any of these documents, please consult the appropriate personnel. If necessary, ask your attorney how to respond.

How may a records custodian respond to a subpoena? If she chooses to produce the records, she can ask for the reasonable expenses of producing the records from the requesting party. Once that payment is received, the custodian may certify the accuracy of the records and then deliver them to the requesting attorney. If the records custodian opts to produce the records before the deposition date, the requesting attorney may cancel that appearance.

Alternatively, the custodian may decide that the records should not be produced and send the requesting attorney a written objection within ten days after the service of the subpoena, or on or before the scheduled deposition, whichever comes first. A written objection requires the requesting party to obtain a court order to get the records. If the practice does not produce the records but fails to send a written objection, the custodian may need to appear at the deposition. Additionally, the practice may be subject to contempt of court and other penalties.

It is important to issue a prompt and proper response to any subpoena and, therefore, it is paramount that you, your records custodian, and your office staff be familiar with the pertinent policies and procedures for handling subpoenas.

WHEN YOU RECEIVE A SUBPOENA, FORWARD THE DETAILS TO YOUR RISK MANAGEMENT PERSONNEL FIRST, AS A SUBPOENA FOR MEDICAL RECORDS MAY INDICATE THAT A LAWSUIT IS ABOUT TO BE FILED.

This article is intended as a summary of how to respond to a subpoena duces tecum, and does not constitute legal advice.

Jamie Wilhite Dittert and Stephanie M. Wurdock are associates with Sturgill, Turner, Barker & Moloney, PLLC, working in healthcare law and medical malpractice defense. They can be reached at (859) 255-8581.