Advice on surviving a subpoena

“You've been served.”

Most people have heard those words spoken on TV or in movies, but in real life, what happens next? At a session at Internal Medicine Meeting 2021: Virtual Experience, Della C. Payne, RN, Esq., offered physicians some tips on how to respond to a subpoena.

By definition, a subpoena is a formal written order that requires a person to appear before a court, governmental agency, or other tribunal to give testimony at a particular time and place, or to produce documents that they have in their possession, said Ms. Payne, deputy general counsel for Main Line Health in Bryn Mawr, Pa. Subpoenas are used in both civil and criminal cases and in agency proceedings, she said.

In civil cases, a plaintiff seeks to hold another party, the defendant, liable for some type of harm. Examples that can involve health care professionals include medical malpractice lawsuits, motor vehicle accidents, contract disputes, and slip-and-fall cases, among others, she said.

“Usually, if the plaintiff is successful, they're going to be awarded compensation for the harm that resulted from the acts of the defendant or from the omissions of the defendant,” Ms. Payne said.

Criminal cases are brought by the government against a person accused of a crime. The subpoena will say, for example, the Commonwealth of Pennsylvania or the United States of America versus a defendant, Ms. Payne noted. A criminal case “seeks to punish the wrongdoer, and if convicted, the defendant can face jail time, probation, payment of fines, community service, or some combination thereof,” she said.

Administrative proceedings, in contrast, are brought by a governmental agency to enforce rules and regulations related to that agency and prosecute violations of the rules, Ms. Payne explained. Examples include licensure actions or Equal Employment Opportunity Commission matters, she said.

Different types of subpoenas compel different actions, Ms. Payne said. A subpoena duces tecum, for example, compels a person to produce documents or records. “In the malpractice arena …, they're looking for medical records and/or billing records from the doctor,” she said. “The subpoena will specify a specific deadline for responding, and it will request that you send all of the documents to a particular person at a particular address that's listed on the subpoena. And once you've sent those records off, you have fulfilled your obligation.”

Ms. Payne stressed that a subpoena does not require the creation of documents in order to respond. “It's just asking for documents that you actually have in your possession,” she said. “And of course, if you get a subpoena, you should not destroy any documents.”

What happens if someone receives a subpoena asking for documents but has none to provide? In that case, Ms. Payne said, “you can complete something called a no-record statement that sometimes come with subpoenas, or you can send a letter to the requestor to advise them that you have no records.” If you do have records to supply, you may be entitled to reasonable copying costs, she noted.

Hospital-based physicians who receive a subpoena should send it to their medical records department to handle, Ms. Payne said. “You should not be going into the medical record and printing out documents in response to a subpoena.”

Physicians should also be mindful of whether requested information is superprotected, Ms. Payne said. “Certain types of information, for example, mental health, substance use disorders, or HIV records, may require, depending on where you practice, the authorization of either the patient or the authorization of a court by way of a court order before those records are permitted to be produced,” she explained.

A second type of subpoena is one that requires testimony. A physician typically is subpoenaed as a witness to provide facts related to a particular case. For example, in a criminal context, a physician may be asked to testify about injuries sustained by the victim of a crime, about statements made by a patient during treatment, or about a patient's intoxication status. In the civil context, she said, physicians may be asked to testify about their treatment of a patient. Those testifying in response to a subpoena may be entitled to witness fees that can be controlled by a statute or to reimbursement for round-trip mileage, Ms. Payne said.

Fact witnesses are not the same as expert witnesses, Ms. Payne pointed out, since the latter are witnesses who offer testimony based on their opinions of a particular case. “Experts need to be qualified by training and experience, and they're typically charging a fee,” she said. “And you're not typically getting a subpoena to serve as an expert.”

Whatever the cause, there are common questions from those who get subpoenas, Ms. Payne has found. “Can you ignore it? Can you throw it away? Can you not show up?” she said. “I've often been asked … ‘How can I get out of it?’ And the bottom line is you must address a subpoena.”

As a first step, employed physicians can contact their legal or risk management department and ask them to determine whether the subpoena is valid, Ms. Payne said. Those who don't have access to risk management or legal departments should consult their insurance carriers, who may assign an attorney to assist.

Different courts and agencies can have different rules for how subpoenas must be properly served, Ms. Payne said. “So service could be in person, it could be by a process server, it could be by certified mail. It could even come by ordinary mail, depending on your court rules,” she said. “If the service is not proper under the applicable rules, the subpoenaed party, in this case you, could potentially object and not respond.”

It's a good idea to retain all the documents that come with the subpoena in case of a challenge, Ms. Payne said. This includes “anything related to the service of subpoena: the envelope, the receipt, and the affidavit and process,” she said. “All that should be gathered in case there's an objection that needs to be made.”

In most cases, she said, a subpoena will state that the named party may face sanctions if they fail to appear or respond. These can include expenses and attorneys' fees, and people can be held in contempt with a warrant for their arrest. “I've never seen that, but it is a possibility,” Ms. Payne said.

When responding to a subpoena, time is of the essence, she stressed. “If there are delays, rights can be lost, including your ability to object to certain types of subpoenas, and costs can really increase, so you need to not put it on the bottom of the pile of paperwork that you have, but take care of it right away.”

Physicians subpoenaed to testify who have scheduling conflicts with the date or time listed can often contact the issuing party to reschedule, Ms. Payne said, especially if the subpoena is for a deposition. “They're usually pretty good about allowing the doctors to reschedule based on their office schedule. They sometimes will just serve the subpoena to get it out, and then they oftentimes expect that there's going to be some negotiating in terms of when exactly the [deposition or testimony] will take place,” she said.

It's also possible to request a change in location, Ms. Payne noted. “Sometimes the lawyers will just pick their office and it might not be anywhere near you,” she said. “If you ask, sometimes they will agree to come to where you are at your office or to the hospital, to allow the testimony to occur with as little inconvenience as possible to you.” If the testimony or deposition is rescheduled, make sure to get the change in writing, she said.

She offered one final tip for responding to subpoenas: Always call the day before to confirm that testimony or a deposition is still happening. Cases are often settled and hearings are often postponed, but “sometimes, unfortunately, they forget to let the witnesses know that,” she said. “It's really helpful to call the day before and make sure you're still needed to appear.”

Note: Ms. Payne's views are her own, not her employer's, and the advice provided is intended for general purposes, not as legal advice.