Receiving a subpoena for information or testimony can make any physician feel nervous and apprehensive. The official-looking notices often arrive as certified mail, have a stamped deadline, and include an attorney’s signature.
But immediately fulfilling a subpoena without first accessing the request could land doctors in legal trouble.
Michael J. Schoppmann
"Understandably, many physicians don’t recognize that no judge has reviewed the propriety of a subpoena," said Michael J. Schoppmann, a New York–based health law attorney and managing partner for a health care litigation firm. "Most judges are not even aware of the subpoena. There’s an assumption by the physician that it has been vetted by the court and, in many cases, that is not true. With good intentions, we find physicians getting into trouble out of a desire to be compliant."
Before answering a subpoena, physicians should evaluate where the request originated, the status of the case, and who is involved, legal experts say. Frequently, a request for patient information or records is objected to by the patient’s attorney, said Michael J. Sacopulos, a medical liability defense attorney and founder of Medical Risk Institute (MRI) in Terre Haute, Ind. Physicians should ensure record requests are authorized by the patient or are bidden through a court order.
"Let’s say you’re not going to court, but they want information," Mr. Sacopulos said. "You have HIPAA issues at play. You still have an independent duty to safeguard patient information."
Mr. Schoppmann recommends that physicians contact the judge affiliated with the case and request guidance about how to proceed with a subpoena. The judge may deny the request because the records are inappropriate or allow the subpoena to proceed.
"It’s great protection because if we get an order from the court, that (shields the doctor) from the litigants later saying, ‘We did not want you to release those records.’" Mr. Schoppmann said.
In other instances, physicians may be subpoenaed to discuss a patient’s condition or treatment in a third-party case. For example, a patient who is suing an insurance carrier or third-party over a vehicle accident. Doctors have a responsibility to offer honest and unbiased testimony about their patient’s medical condition, said Steven Fitzer, a medical malpractice defense attorney in Tacoma, Wash. and former chair of the Washington State Bar Association Litigation Section. However, physicians should steer clear of providing opinions on medical matters unrelated to their expertise.
"A family practice doctor should offer thoughts and opinions and facts that are within his or her specialty," Mr. Fitzer said. "If (the doctor) regularly treats people who have whiplash and cervical strain, you can talk about that. But the family practice doctor shouldn’t be talking about neck surgery unless you do neck surgeries."
Physicians should also consider and address how their involvement with a case may affect their relationship with patients, Mr. Fitzer adds. Often, patients view their doctor as their supporter and expect their alliance during in a third-party lawsuit.
"Patients sometimes misunderstand that the role of the doctor in a deposition is to call it the way he or she sees it, not to be an advocate for the patient," he said. Doctors should "communicate that to the patient" beforehand.
Michael J. Sacopulos
Be wary of subpoenas for information or records that stem from a malpractice case in which the doctor is a named defendant, Mr. Sacopulos notes. In such instances, a plaintiff’s attorney may request details about a patient visit or ask about a doctor’s role in treating the patient within the continuum of care. But the attorney could really be fishing for more physicians to sue.
"They may have sued one or two physicians, but the statute of limitations has yet to run out," Mr. Sacopulos said. "They’ll sue one or two, then depose others to see if they can’t get some finger pointing and increase the litigation."
In addition, plaintiffs’ attorneys may hope that the subpoenaed physician makes statements to further enhance their case against another doctor, without hiring them as an expert witness.
"My advice would be if you are requested to offer testimony in a case that you are not a party to, you immediately contact your liability carrier," Mr. Sacopulos said. "Your medical malpractice carrier will most often provide an attorney for a deposition, even though you’re not a party."
Physicians should not let attorneys intimidate them with subpoenas or excessive demands for information. Some lawyers request thousands of pages of documents in a short timeframe and pressure the physician to comply, Mr. Schoppmann said. Other attorneys try to convince physicians to speak with them over the phone about the request and to provide patient information verbally.