by Joan Meighan and Nancy Young

You’re in your office finishing some paperwork when your office manager comes in with a subpoena. You think, “I’m being sued.”  The news isn’t that bad, it’s just a subpoena.   The subpoena reads: “You are hereby summoned to produce all medical records relating to your treatment of……”

Should you be nervous? As with many legal questions, that depends. Certainly any subpoena deserves your concern, as well as a cautious response. To ignore a subpoena you can be found to be in contempt of court.  If you have any questions or concerns regarding the subpoena, they need to be clarified, not ignored. A subpoena must be responded to in a timely manner.

A valid judicial subpoena should not be confused with a “records reproduction subpoena.” A valid subpoena should identify the court, the name of the case and the docket number. It should also identify the person to whom the subpoena is directed; any documents and other materials to be produced; the time and place for any appearance or delivery; and the name and contact information of the attorney who obtained or issued the subpoena. A subpoena should be signed by an authorized person, dated and have a raised seal. Although you may receive subpoenas from other states, they are not honored in Pennsylvania.

The type of subpoena you are most likely to receive is a request for medical records or medical material (x-rays/slides/etc.) of a patient you have treated. While the request may be routine, you need to confirm that it is a legitimate request, as the unauthorized release of patient’s records can result in a HIPAA violation or civil lawsuit for breach of confidentiality. You may not be obliged to turn over the records. However, you are obligated to protect the confidentiality of the doctor-patient relationship. The unauthorized release of a patient’s records can result in a civil suit against you by the patient, or a disciplinary action-including possible loss of license by the state medical board.

When a valid subpoena for medical records is issued, patient authorization is not required before the records may be released, provided the records do not contain information which is treated with heightened confidentiality such as information concerning mental health, drug or alcohol treatment or HIV related information. Only a court order or a special Patient Authorization Form can allow for a release of such information. All other requests for this information, including via subpoena, will not be honored. If a copy of the record is sent, reference to HIV, mental health, or drug and alcohol treatment should be removed.

If you are subpoenaed to bring medical records with you to a deposition or trial you may be able to avoid a personal appearance by sending certified copies of the records, or by sending them with a designated custodian. This can be worked out through discussion with the attorney who obtained the subpoena.

If you have any questions regarding authenticity of a document, release of HIV/MH/Drug and Alcohol information, accepting and/or complying with a subpoena, contact Nancy Young, director of Risk Management at Crozer, at 610-447-2995; or Joan Meighan, director of Risk Management at DCMH, at 610-284-8156.