Part 6: You Received a Subpoena - Now What?

Med Mal 101: Back to Basics is 12-part series produced by Friday, Eldredge & Clark. Written by the attorneys in the Medical Malpractice Group, the content is designed to give physicians and other healthcare providers information they need to know about malpractice litigation.

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What happens when a medical care provider receives a subpoena to testify about a patient or that requests copies of a patient’s medical records? In today’s regulated and litigious health care environment, it is important to contact legal counsel immediately upon receipt of a subpoena because subpoenas may involve privileged information and other issues that must be addressed in a short period of time. This article in our Med Mal 101 series discusses some of the initial things that a medical care provider should consider when he or she receives a subpoena in Arkansas state court. The rules in Federal Court differ in some ways. It is intended as general information for educational purposes only and is not legal advice. An attorney should always be consulted about a specific subpoena. Next month’s update will address additional privacy concerns that must also be considered. 

How will I receive notice of the subpoena?

A subpoena may be served, depending on the situation, by delivery, telephone, or mail. For example, a subpoena commanding someone to appear for trial, hearing or deposition may be delivered to the witness by the sheriff or his or her deputy, but it may also be served by any adult who is not a party to the case. Some types of subpoenas may be served by the sheriff or a deputy sheriff by telephone. In other cases, an attorney for a party may serve a subpoena by restricted delivery mail with a return receipt requested. Proper service depends on the specific situation so it is advisable to consult an attorney when presented with a subpoena to determine whether and how compliance is required under the circumstances. 

How do I know what is required of me?

As an initial matter, one should look at the subpoena to determine whether it asks for testimony, records, or both. A subpoena ad testificandum seeks oral testimony. A subpoena duces tecum commands a witness to produce books, papers, documents, or tangible things. Often, a subpoena will request production of items and testimony. The first consideration, therefore, is to determine exactly what is being asked of the witness. 

How long do I have to respond?

The time period for response may be very short so it is important to contact your legal counsel immediately. Generally, when a proper subpoena commands someone’s presence at a trial or hearing in state court, a witness, regardless of his country of residence, is obligated to attend for examination at a trial or hearing with at least two days' notice. See Ark. R. Civ. P. 45(d). When the subpoena commands a person’s presence at a deposition, the witness must be properly served at least five business days prior to the date of the deposition, absent a court order. See Ark. R. Civ. P. 45(e). If a witness objects to the subpoena for some reason, he or she typically has 10 days after the service of the subpoena to object. If the time specified in the subpoena is less than 10 days, the person can object at any time before the time for compliance is due. 

What about expenses?

A subpoena to appear at a deposition, hearing or trial must be accompanied by a tender of a witness fee calculated at the rate of $30 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the deposition, trial or hearing. If medical records are requested, guidance from the United States Department of Human Services provides that a records keeper may charge “reasonable, cost-based fee, provided that the fee includes only the cost” of labor for copying the requested protected health information, supplies for creating paper or electronic copies, postage, and preparing an explanation or summary under certain circumstances. There is also a $6.50 flat rate option, but this is not a “cap” on what may be charged. For additional information regarding allowable fees for medical records see, U.S. Dep’t of Health and Human Services Guidance, regarding Individuals’ Right under HIPAA to Access their Health Information and 45 CFR § 164.524, (2016).

What about patient privacy?

Next month, we will focus on some additional considerations that must be observed in order to comply with patient privacy rules when responding to subpoenas.

The information was written by the attorneys in the Medical Malpractice Group at Friday, Eldredge & Clark, LLP. This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Medical Malpractice Attorneys.

The 12-month series will include the following topics: