Subpoenas and Court Orders—Friend or Foe?

A question often asked by psychiatrists is “How should I respond to a subpoena or court order?” The subpoena may be from an attorney representing your patient or another party seeking information for a pending court proceeding.

Q.  What is a subpoena or court order?

A.  A subpoena is a document, usually prepared by an attorney, requesting information or an appearance in court or at a deposition (testimony under oath). Typically, the attorney serving the subpoena is representing a person or organization involved in a lawsuit and is seeking information or a source of information that the attorney believes will assist the case. A court order is a directive by a court or judge ordering the production of information (such as medical records) or someone’s appearance in court.

Q.  How should I respond to a subpoena or court order?

A.  We recommend you contact your insurance agent or risk management professional as soon as possible to assist with your response. Never ignore a subpoena or court order as the failure to respond, even with a “no,” may be considered contempt of court with resultant sanctions. Be aware that not all subpoenas are alike, and it can be confusing as to what information you should provide or if your appearance in court is necessary.

Q.  Are subpoenas and court orders a friend or foe?

A.  Generally, subpoenas and court orders are your friend. A subpoena or court order is an added protection when being asked to release sensitive mental health information protected under HIPAA, especially since there is no guarantee the information will remain confidential once released. By forcing production of information, the subpoena or court order allows a psychiatrist to remain neutral in a third-party proceeding such as a lawsuit or custody situation involving your patient. It is important to not take sides in someone else’s litigation.

Q.  Should I request a subpoena or court order to release HIPAA-sensitive information?

A.  In general, when patients or parents with legal standing are asking for their or their child’s medical records, a signed record release authorization listing the specific information requested is acceptable. However, it is a good practice to request a subpoena or court order before releasing medical records when (1) it is unclear whether the person asking for the medical record has legal standing to obtain the information, (2) the information is being requested as part of a highly contentious and/or publicized divorce or custody battle, (3) if an attorney wants to speak to you, (4) if an attorney requests your appearance at a deposition or court hearing as a potential witness in a pending litigation case, or (5) when a situation arises where you feel the added protection of a subpoena or court order is warranted prior to releasing the medical record.

Remember to do the following:

• Consult your liability insurance carrier or insurance agent immediately upon receiving a subpoena or court order and before responding to it.

• Inform your patient that you have received a subpoena for his or her records, and if the subpoena does not include the patient’s consent to release the record, obtain the patient’s authorization before doing so.

• Consult your risk management professional if you are unsure whether a subpoena or court order should be requested when a patient or another party requests the release of HIPAA-protected information.

• This process will allow your liability carrier and your counsel the best opportunity to represent your best interests in the matter. ■

This information is provided as a risk management resource for Allied World policyholders and should not be construed as legal or clinical advice. This material may not be reproduced or distributed without the express, written permission of Allied World Assurance Company Holdings, Ltd, a Fairfax company (“Allied World”). Risk management services are provided by or arranged through AWAC Services Company, a member company of Allied World. © 2020 Allied World Assurance Company Holdings, Ltd. All Rights Reserved.