Ashley H. VanDercar, MD, JD.
Psychiatrist, Northcoast Behavioral Healthcare, Northfield, OH.
Dr. VanDercar, expert for this educational activity, has no relevant financial relationship(s) with ineligible companies to disclose.
CHPR: Dr. VanDercar, you recently gave us helpful tips for testifying in court. Today I’d like to ask you about subpoenas. Can you give us tips about how to handle them?
Dr. VanDercar: First, you need to know what type of subpoena you received (Editor’s note: see “Things to Consider When You Receive a Subpoena”). Typically, it’ll be either a subpoena ad testificandum (a subpoena to testify) or a subpoena duces tecum (a subpoena to provide documents). The two can come together, where you’ll be subpoenaed to testify and bring your records with you. Attorneys sometimes waive the obligation to testify if the records are sent ahead of time. Second, you need to think about how to balance any legal duties you might have for disclosure and your obligations to maintain confidentiality of protected health information (Mossman D, Current Psychiatry 2015;14(12):33–36). If you’re a clinician on an inpatient psychiatric unit, you have people who are trained to deal with this issue. Specifically, you have a hospital attorney. Whether you are at a hospital or elsewhere, you also have your malpractice carrier. Make good use of these resources. Subpoenas can be tricky.
Dr. VanDercar: If you aren’t familiar with dealing with them, it’s easy to make a mistake. When you receive a subpoena, ask yourself: Why did I get this? Often, physicians’ minds go to the thought that they might be getting a subpoena because of an impending lawsuit—for instance, there might already be a malpractice lawsuit and the attorneys are considering adding the physician as a co-defendant. But you might just be getting a subpoena because one of your patients is filing for disability, or they might be suing a third party for psychological damages and they want your records to substantiate their claim. Next, determine if the subpoena is valid. It might be from an attorney who is overreaching, either because they are asking you to appear in a jurisdiction you don’t have to go to or because they are requesting things they can’t ask for. If an attorney is issuing the subpoena, seeking your records, they are primarily concerned with obtaining the documents. You, however, need to be concerned with whether you can legally release the records without violating your legal duties to protect patient confidentiality.
CHPR: How do you know if a subpoena is valid?
Dr. VanDercar: Get advice from the legal department at your hospital and/or your malpractice carrier. They will look at who signed the subpoena, whether that person can legally issue subpoenas in your jurisdiction (particularly if they are across state lines), and whether they can request the documents that they are asking for.
CHPR: So, if the subpoena is valid, is it safe for us to release records?
Dr. VanDercar: Being valid is the first step, but not the only step. A valid subpoena doesn’t necessarily give the clinician carte blanche to disclose all the patient’s records—there are exceptions and caveats. First, some states have more restrictive privacy laws than those that apply on a federal level (eg, HIPAA). Second, although it’s beyond the scope of this interview, there are very important differences between clerk- or attorney-issued subpoenas, grand jury subpoenas, and administrative agency subpoenas. In many cases, if you receive a grand jury or administrative subpoena, you can release records without patient consent or notice, though it is important that you only release exactly what is requested. The same is true if you receive a judge- or magistrate-signed order to release records; in that case, it is a court order, but you again need to limit your disclosure to that which is requested. For a clerk- or attorney-issued subpoena, before releasing subpoenaed records, there are additional things that you need to look into. Specifically, you need to check that the patient has either consented to the release of the records or been notified and given an opportunity to object. There are additional considerations with psychotherapy notes and certain types of substance use treatment centers. Again, consult your legal department.
CHPR: How will we know if the patient has consented to the release or been given an opportunity to object?
Dr. VanDercar: Sometimes a subpoena will be accompanied by a signed patient release. Check to make sure it is HIPAA compliant and adequately authorizes the release of the requested records. Alternatively, the subpoena might be accompanied by a statement that the patient has been given adequate notice to object and has not done so. If neither of these things accompany the subpoena, you can obtain a release yourself, or you can formally notify the patient about the request, giving them an opportunity to contest the disclosure of their records if they choose.
CHPR: What do you do if the patient does not agree to the disclosure of their records?
Dr. VanDercar: In those cases, the patient’s attorney can try to have the subpoena quashed. But if a judge denies the motion and orders the release of the records, then you will need to turn over the requested documents. As clinicians we have a duty of confidentiality, but in the end we must obey the law and court orders.
CHPR: Thank you for your time, Dr. VanDercar.
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