What Should I Do If A Receive A Subpoena?

The Office of the General Counsel receives a number of questions from physicians regarding subpoenas. These questions usually boil down to two types of questions. First, do I have to comply with a subpoena signed by an attorney and not the clerk of the court? Second, is there anything special that I must do before I send the records requested in a subpoena?

The answer to the first question is "yes." An attorney can issue a subpoena upon his signature. Attorneys are no longer required to get the signature of the clerk of the court to issue a subpoena. The answer to the second question, as long as the records in question are not HIV, psychiatric or substance abuse records, is also "yes." A subpoena for these types of records must be accompanied by a court order authorizing the disclosure.

First of all, it is important to remember that a physician must, unless otherwise prohibited by law, furnish copies of patient medical records upon the issuance of a subpoena. However, the HIPAA Privacy Rule now also requires that the patient or the patient's legal representative be notified of the subpoena before the records are produced.

The HIPAA Privacy Rule provides that a physician who receives a subpoena may disclose information contained in the medical records only if the physician receives "satisfactory assurance" from the party requesting the information that the patient has been notified of the subpoena. "Satisfactory assurance" is defined by the Privacy Rule to mean that the physician must receive from the attorney requesting the information a written statement and accompanying documentation that demonstrates that:

The attorney has made a good faith attempt to provide written notice to the patient (or, if the patient's current location is unknown, the attorney has at least mailed a notice to the patient's last known address);

The notice must have included enough information about the litigation which is listed in the caption of the subpoena to permit the patient to raise an objection to the court or administrative tribunal; and

The time for the patient to raise an objection has elapsed; and

No objections were filed; or
All objections that were filed by the patient have been resolved by the court or the administrative tribunal and the information being sought is consistent with such resolution.

If the physician receives a subpoena that is not accompanied by the statement of "satisfactory assurance" described above, the physician may provide the requested information if the physician first makes "reasonable efforts" to notify the patient. "Reasonable efforts" is defined by the Privacy Rule to include the same requirements as mentioned above for "satisfactory assurance." These efforts to notify the patient must be documented in the patient's medical record.

The Privacy Rule also provides that the physician may release the medical records if the physician receives satisfactory assurance from the party requesting the information that reasonable efforts have been made to secure a qualified protective order. A "qualified protective order" is defined by the Privacy Rule to mean a court order or a stipulation by the parties that:

The parties will not use or disclose the medical record for any purpose other than the litigation or proceeding for which the information was requested; and

· The parties will return the medical records to the physician or destroy the medical records (including all copies) at the end of the litigation or proceeding.

If the physician has not received either a protective order or other order prohibiting the document request by the time to produce the records, the physician must produce the requested records by the time that the patient has to raise an objection has elapsed.