What to Do If You Get a Subpoena or Court Order

At some point in your career, you will likely receive a subpoena or a court order pertaining to litigation brought by or involving a patient. A subpoena is a written order commanding someone to produce documents or materials (including treatment records) and/or provide live testimony at a deposition, trial, or hearing. Depending on the laws of your state, subpoenas may not need to be signed by a judge to be valid.

A court order, in contrast, is an official decree signed by a judge that requires the recipient to do something specific. Unless there is a compelling reason why you cannot appear on the date set or before the deadline set by the court, you need to appear.

Although the Health Insurance Portability and Accountability Act (HIPAA) permits a “covered entity” (that is, health plans, health care clearinghouses, and health care providers to which HIPAA rules apply) to disclose protected health information pursuant to a subpoena and/or a court order, it is important to understand the type of request received. The standards for HIPAA compliance differ depending on whether the request is pursuant to a subpoena versus a court order. Additionally, it is important to understand your particular state’s patient confidentiality protections, as there are often additional protections and requirements under state law. Failing to respond or responding inappropriately to a subpoena or a court order may subject you to court sanctions or a breach of confidentiality claim.

Thus, upon receiving a subpoena or a court order, you should first contact your professional liability insurer. Many policies provide coverage for attorney representation for these matters, even if you are not a party to the litigation and the legal action is not considered a claim under your professional liability policy. When responding to subpoenas and court orders, it is often advisable to have attorney representation as your response will depend on the specific circumstances involved as well as the rules for your particular state.

If the subpoena or court order involves releasing medical records, absent certain circumstances, medical records cannot be disclosed without patient consent. Moreover, even if the subpoena/court order is accompanied by a signed release, there may be clinical or legal reasons for not releasing the records in response to the subpoena/court order.

In addition, numerous states have heightened protections against disclosing behavioral health/psychiatric records due to the sensitive information contained within, even in the presence of a subpoena. Having attorney assistance can help you determine whether and what records must be produced, whether any of the records need redacting, and whether your state law permits you to charge fees to cover the administrative costs associated with the records production. Legal counsel can also assist you in navigating federal and state privacy laws when complying with the request.

If the subpoena or court order involves providing testimony regarding the treatment you provided to a patient, it is advisable to have attorney representation—even in situations where you are not a party to litigation. Your attorney can help you prepare for the questions expected to be asked by the other attorneys involved in the lawsuit, and this preparation can help minimize the risk of inadvertently providing an opportunity for another party to bring litigation against you.

To sum up, if you receive a subpoena or a court order, promptly notify your liability insurer to determine whether your professional liability policy provides coverage for legal representation, even if you are not a party to the litigation. An attorney will help you navigate the numerous federal and state laws to ensure that you avoid a breach of confidentiality claim and/or court sanctions.

For other risk management topics, please see the online risk management courses available on APA’s Learning Center Risk Management page. ■