Jonathan M. Hartman, Esq.
Cline, Cline & Griffin, P.C.
It is a regular occurrence in my practice to receive a phone call from a physician who has been served with a subpoena to testify in court or by deposition, produce a patient’s chart, or possibly both. Often the physician is unsure of how to respond or what to do. A proper response to a subpoena can be confusing, time-consuming, and even disruptive to a medical practice. There are many legal context in which a subpoena upon a physician is commonplace. Fields of law as diverse as criminal, domestic relations, juvenile abuse and neglect, wills and estates, personal injury, medical malpractice, social security disability and workmen’s compensation are but a sampling of legal arenas that can and do require medical expertise.
Generally, a subpoena is a command to appear at a certain time and place to give testimony upon a certain matter. A subpoena duces tecum requires the recipient to produce books, papers or other things. Black’s Law Dictionary. The latter can encompass the production of medical records. When a mental or physical condition of a party is in controversy, medical information about the condition is subject to discovery. Medical information subject to discovery includes, but is not limited to, medical records in the possession or control of the physician or hospital. MCR 2.314. HIPAA requirements do provide a backdrop to the discussion. As a rule, a savvy physician, as a defense mechanism and in the interest of patient care, should demand a proper authorization be signed in conjunction with a subpoena.
A formal analysis of HIPPA and the interplay with a subpoena is beyond the scope of this paper. Yet, suffice it to say that a court can compel a guardian or party to either sign an authorization, or simply rule that a privilege or privacy concern has been waived under certain circumstances, even in the absence of a properly executed authorization for release of records or medical information. As such, the lack of a signed authorization in the chart does not relieve the physician from the obligation to properly and timely respond to a subpoena.
Moreover, and in particular, the Michigan Court Rules provide that an attorney of record in an action, the clerk of the court in which the matter is pending, or the court itself may issue a subpoena, all of which shall equally have the force and effect to compel sworn testimony and/or production of documents. MCR 2.506. The signer of the subpoena must issue it for service on the witness sufficiently in advance of the trial or hearing to give the witness reasonable notice of the date and time of the appearance. The general rule is that two (2) days advance notice is required. Michigan law also dictates that the witness be issued a modest fee of $12.00 per day plus mileage reimbursement. MCLA 600.2552. Reasonable reimbursement for copying charts is also warranted.
You may be thinking, why is this important, or how could this affect my time and medical practice? Practically speaking, receipt of a subpoena for live court testimony can result in hours, and sometimes days, away from your office and patients. Likewise, copying medical charts uses up valuable office resources. The failure of the recipient to obey the commands of the subpoena or the reasonable directions of the signer may subject the recipient to penalties for contempt of court. Such penalties theoretically can include fines or even jail time. Also, an unsuspecting physician can sometimes find himself at the center of the dispute, being asked opinions on medical issues that may even be beyond his expertise. To combat such a scenario, it is recommended that you attempt to clarify your role prior to testifying. Are you a fact witness limited to information in the chart? By contrast, will you be acting in an expert capacity? If you elect not to be an “expert” tell the signer attorney in advance that you have not formulated any opinions other than what is in the chart. The bottom line is that you should know what you are in for and protect your rights in either scenario. If in doubt, consult your attorney in advance of the court date in an effort to streamline the process. In doing so, you will be protecting yourself and your practice from potentially unnecessary harassment and inconvenience. You will usually be glad you did.
