‘You’ve been served’: What to do if you receive a subpoena
If the patient will not agree to the disclosure, the patient or the patient’s attorney can seek to have the subpoena modified or quashed (declared void). One tactic for doing this is by asserting doctor–patient privilege, a legal doctrine codified in most state’s laws. The privilege recognizes that, because privacy is important in medical care, stopping clinical information from automatically coming in court serves an important social purpose.13
The doctor–patient privilege belongs to the litigant—here, your patient—not to you, so your patient has to raise the objection to releasing information.14 Also, the privilege is not absolute. If having the clinical information is necessary, the judge may issue a court order denying the patient’s motion to quash. Unless the judge later modifies or vacates the order, you risk being found in contempt of court if you still refuse to turn over documents demanded by the subpoena.
Fact witness or expert witness?
If the subpoena demands your testimony, the issuing party might want you to serve as a fact witness or expert witness. Persons with relevant personal knowledge to a legal proceeding can serve as fact witnesses, and testify about things they did or perceived.15 For example, a psychiatrist serving as a fact witness could recount having heard or seen a patient talking aloud as if arguing with someone when no real interlocutor was present.
A witness whom the court deems an “expert” by virtue of special knowledge, skill, experience, training, or education may offer opinions based on specific sets of facts. Courts hear such testimony when the expert’s specialized knowledge will help the jury understand the evidence or reach a verdict in a case.16 To return to the example above: a psychiatric expert witness might tell jurors that the patient’s “arguing” was evidence that she was hallucinating and suffered from schizophrenia.
If you receive a subpoena to testify about someone you have treated, you should notify the issuing party that you will provide fact testimony if required to do so. You cannot be compelled to serve as an expert witness, however. In many situations, attempting to provide objective expert testimony about one’s own patient could create unresolvable conflicts between the obligation to tell the truth and your obligation to serve your patient’s interests.17
If the subpoena requests deposition testimony about a patient, you probably will be able to schedule the deposition at a time that is convenient for you and the attorneys involved. Yet you should not agree to be deposed unless (a) you have received the patient’s authorization, (b) a court has ordered you to testify despite the patient’s objection, or (c) your attorney (whom you have consulted about the situation) has advised you that providing testimony is appropriate.
If you are called as a fact witness for a trial, the attorney or court that has subpoenaed you often will try to schedule things to minimize the time taken away from your other duties. Once in court, you can ask the judge (on the record) whether you must answer if you are asked questions about a patient who has not previously authorized you to release treatment information. A judge’s explicit command to respond absolves you of any further ethical obligation to withhold confidential information about the patient’s care.
Bottom Line
If you receive a subpoena for records or testimony, obtaining the patient’s written authorization should allow you to release the information without violating confidentiality obligations. If your patient won’t agree to the release, if turning over information might adversely affect the patient, or if you’re not sure what to do, seek advice from an attorney who knows about medical privacy rules. That way, you can be sure you are meeting all legal and professional standards that apply.
Disclosure
The author reports no financial relationship with any company whose products are mentioned in this article or with any manufacturers of competing products.
