Guidelines for Handling Subpoenas

Requests for the release of medical information are an inevitable part of the modern practice of medicine. The receipt of a formal subpoena may be intimidating if the process is unfamiliar. The following is a general reference guide to help you determine if a subpoena is valid, how you should respond, whether special privacy rules apply, and when you should get legal help.

Due to space limitations, every rule and exception cannot be covered here, and these guidelines are not a substitute for legal advice. You should contact your malpractice carrier or attorney to help you handle specific situations.

Determining Validity

A subpoena may appear on a reprinted “Judicial Council Form” or on legal pleading paper. Examine it carefully to determine whether it requires you to appear personally to testify of whether it required only the production of records. If the subpoena calls for testimony, or if it is unclear, contact your insurance carrier or personal attorney immediately.

To be valid, a subpoena must be personally served (i.e. delivered) on you or someone in your office who is authorized to accept such documents. In addition, a valid subpoena must meet the following criteria:

• It must be issued by the court clerk or by the attorney handling the matter. The signature of the person issuing the subpoena is usually found at the bottom of the document.
• It must be addressed to you, your custodian of records, or another person in your office who is qualified to certify the requested records.
• It must specify a production date at least 20 days after the subpoena was issued and at least 15 days after it was served upon you.
• It must identify each item or category of items to be produced.
• It must be accompanied by documents indicating that the patient has been informed that the medical records are being requested. The date for production of the records must be at least 20 days after the date the patient was notified in order to give the patient a chance to object to the subpoena, if necessary. An authorization form signed by the patient will also meet this requirement.

How to Respond

Assuming the subpoena is valid and only requires the production of records, the next step is to determine how the records are to be produced. The subpoena will generally instruct you to produce the records in one of the following ways:

• By making the records available for copying by a service hired by the requesting attorney. In this instance, the subpoena will generally designate a date on which the records are to be made available to copy service employees who will come to your office to copy the records during business hours. You should set aside no less than six continuous hours on the date specified for the copying to occur.
• By requesting your office to mail a copy of the records to the attorney who issued the subpoena. If the subpoena specifies this option, you should be aware that there are special rules governing how the records must be packaged and presented. Contact your attorney to help you prepare the documents properly.

NEVER send out your original chart in response to a subpoena. In addition, if the requested records pertain to a patient who has filed a malpractice claim or lawsuit against you, DO NOT include any documentation or correspondence concerning the claim/lawsuit in the chart to be copied.

If the subpoena appears to require you to appear personally and produce the records, contact your insurance carrier or attorney for clarification regarding what is required.

The law requires that records obtained pursuant to a subpoena be accompanied by an affidavit from the records custodian. This document basically certifies that complete copies of the records have been produced, etc. If the records are obtained by a copy service, the copy representative will generally supply this form for your signature. If the subpoena asks you to produce records in another fashion (i.e. by mail or in person), you will need to contact counsel to make sure you respond appropriately.

The law requires you to recover certain costs incurred by your office in responding to the subpoena. The amounts you may recover, depending upon how the records are produced, are specified in Evidence Code 1563(b). For example, if the requesting attorney sends a copy service to obtain the records, you may collect $15 plus the actual costs charged to you by a third person for retrieval and return of stored records. You may demand payment simultaneously with the delivery of the records by submitting an itemized list of costs to the requesting party.

Special Cautionary Instructions

DO NOT produce the records before the date specified on the subpoena unless the patient consents to the production. The law requires that the patient be given a certain time period in which to object to the subpoena, if necessary. If you receive notice that the patient is objecting to the subpoena or has made a motion to quash the subpoena, DO NOT produce the records as directed. You must wait for a court order or signed authorization from the patient allowing you to release the records.

In addition, special privacy rules apply to the disclosure of certain types of records. You should contact counsel if you receive a subpoena calling for the production of any of the following:

• Records regarding the provision of mental health services in an institutional setting or pursuant to a community mental health treatment program.
• Records regarding provision of services to persons with developmental disabilities by or on behalf of a regional or state developmental center.
• Alcohol or drug abuse records
• HIV test results

Finally, you need to be aware that there are special rules regarding the records of a minor patient in certain situations. Generally speaking, if a minor has the right to consent to treatment, the minor also has the right to control the disclosure of information regarding that treatment. In those situations, notice to or authorization by the minor’s parent or guardian may not be sufficient to allow disclosure of the records. Moreover, there are certain treatment situations where special rules regarding minors apply. Examples include (but are not limited to) pregnancy, sexually transmitted diseases, and drug or alcohol abuse. These special requirements cannot be explored in depth here; they are mentioned only to make you aware that they exist. If concerns arise regarding a specific situation, contact your insurance carrier or attorney for advice.