Tips For Physicians To Respond To Medical Record Subpoenas

by | Published on Nov 1, 2021 | Medical Record Review

Subpoena refers to a written order from the court or attorney that requires a person to attend court and provide evidence or to submit certain documents to the court. Medical practitioners are often requested to release their patients’ medical records to court under subpoenas. Attorneys mostly use subpoenas to obtain a patient’s medical records that serve as an important evidence for use in personal injury, medical malpractice, or workers’ compensation claims or for different types of civil lawsuits. Medical record review is a key process in extracting key facts and evidence from any type of records.

Why are Medical Records Subpoenaed?

Often, healthcare providers receive a subpoena to attend a deposition or other proceeding or to produce a patient’s medical records that serve as important evidence for medical-legal cases. Subpoenas are issued either by a court or an attorney. While the court-issued subpoena is signed by a judge, the other subpoena will not have a judge’s signature. For court orders, providers must disclose the requested information, irrespective of HIPAA rules. For attorney-issued orders, PHI can be released only if the HIPAA Rule requirements are met and the patient has been notified.
Providers must be familiar with different types of subpoenas such as – witness subpoena that calls for providers to testify in court, subpoena duces tecum, which is a request for documents or records, and deposition subpoena that requires attending a deposition. It is also important to carefully read subpoenas to understand their scope.

Consider these tips, when responding to medical record subpoenas:

  • To confirm that the order was issued by the court, look for the judge’s name and signature on the subpoena. Check the judge’s name listed in print next to the signature.
  • For attorney-issued subpoenas, make sure that the documentation makes effort to notify the patient of the order and related legal matter and must show that the patient had a sensible opportunity to object to the subpoena. Even if the notification requirement is not met, providers can still release PHI if the patient has signed a valid, HIPAA-compliant release form that authorizes the release of records.
  • If the subpoena is incomplete or inadequate, then the provider cannot release protected PHI and should promptly communicate the concern to the issuing party.
  • If there’s no evidence indicating the patient has been notified, providers can request a written statement from the party that – the patient has been notified and has been provided the opportunity to respond, or that a qualified protective order has been sought.
  • To ensure that proper procedures are followed when processing subpoena requests, consider implementing risk management measures. This can reduce liabilities related to unlawful disclosure and breach of confidentiality.
  • Take note of the due date stated on the subpoena and submit records during the recommended time. Not responding to a valid subpoena could lead to penalties, civil damages, court costs and more.
  • If the subpoena comes with an attached authorization for the patient to sign, consider using the practice’s HIPAA authorization form instead. Provide only the requested records.

Subpoenas for practitioners will outline the specific documents that need to be provided to the court. Common records that are requested include patients’ clinical notes, test results, reports and referrals. If the provider has a concern that those requested records contain clinically sensitive information and believes that disclosing them will affect the patient’s mental health, they can make an objection to the court. For subpoenas signed by attorney, providers can contact the party issuing the subpoena to get written assurances or a qualified protective order.

Disclaimer: The information provided in this blog is not professional legal advice and is for informational purposes only. For a professional opinion in this regard, consult an experienced attorney.

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