Proceed With Caution: What Physicians Need to Know Upon Receipt of a Subpoena

Proceed With Caution: What Physicians Need to Know Upon Receipt of a Subpoena by Stephanie J. Rodin, Esq.{4:00 minutes to read} Upon receiving a subpoena, an attorney can help physicians proceed properly by providing detailed clarification and explanations while concurrently minimizing precarious errors.

Before responding to a subpoena, it is important that physicians are aware of how regulations govern the release of patient information, as well as what circumstances qualify the subpoena as valid and appropriate.

Understanding Subpoenas

Generally, a subpoena—a legal demand—is associated with an action that is currently in court. There are two different types of subpoenas:

  1. A judicial subpoena requires an individual’s personal appearance in court to deliver testimony at a particular time and place.
  2. A subpoena duces tecum requires the production of certain documents related to the action such as contracts, patient records, etc.

The particular wording of the subpoena affects the response required. For example, previously, an authorized individual was required to be physically present in court to certify the documents requested by the subpoena duces tecum. However, depending on the language of the subpoena, a certified copy may be efficient.

An attorney will be able to assist with this type of distinction, in addition to providing clarity about privacy considerations. The Health Insurance Portability and Accountability Act (HIPAA) requires that the proper consent, which varies based on the content within the record, is provided prior to the release of any patient records.

Important Considerations Regarding Subpoena Requests

In response to a subpoena duces tecum, the physician must have an attached, duly executed authorization from the patient. It is important to note that certain records are never allowed to be released unless identified by a court order or specific authorization from the patient is granted. This includes records containing information about:

  • HIV/AIDS status,
  • psychiatric history, or
  • alcohol and drug abuse history.

In addition, an out-of-state subpoena may not be considered valid in New York; therefore, a physician may not be required to respond to it. In the event that the physician does respond, it is imperative to ensure that the privacy laws are upheld, particularly regarding the production of documents.

Lastly, the way in which a subpoena is delivered will determine whether it’s proper and worthy of a response. Similar to a Summons and Complaint, a subpoena is required to be delivered: (1) personal delivery; (2) delivered to a person of suitable age and a second copy must be mailed to either a business address or last known address; or (3) delivered to a business’s registered agent.

If any of the aforementioned methods fail, then the subpoena must be affixed to the door of a business or last known address and the second copy mailed out as well.

Subpoenas are not considered proper if delivered by any other alternative method, including fax.

Before responding to a subpoena, it is important to exercise caution. Physicians can be held personally responsible if records are unlawfully released.

By speaking to an attorney, the physician will be able to fully understand the purpose of the subpoena and eliminate any questions or doubt. Contact us for help reading, reviewing, understanding, and proceeding with the request of a subpoena.

Stephanie J. Rodin, Esq.Stephanie J. Rodin, Esq.
Rodin Legal, P.C.
Email: info@rodinlegal.com
Tel: (917) 345-8972
Fax: (917) 591-4428

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