The Scenario – submitted by Steven Stephanides, MD
Traffic was light on your way to work, so with five extra minutes before the start of your shift, you stop by your mailbox. Along with some articles from drug reps and the hospital newsletter you find a letter with a return address to a law firm. Thinking, “This can never be a good thing,” you open the letter only to discover that you’ve been subpoenaed to testify in an upcoming case regarding the injuries Ms. Smith sustained at your facility. Even worse, you’re scheduled to appear in court during your vacation next month.
What are your options?
1. Could this doctor just throw it away and not show up?
2. Is there a way to decline the subpoena or get out of going?
3. Does he have any say in when his court appearance is scheduled?
4. If he has to go, can he be compensated for his time? If so, who pays and what’s a fair rate?
5. Does testifying about a patient’s medical problems violate HIPAA?
6. Does it matter whether the subpoena is signed by a judge or a lawyer?
A subpoena is an order to appear and testify before a court. The word comes from the Latin phrase subpoena meaning “under penalty.” Most subpoenas will state that, “your failure to appear in response to this subpoena will subject you to punishment for contempt of this court.” In other words, if you receive notice of a subpoena and don’t show up at the assigned date and time, the court has the ability to sanction you. Subpoenas can be issued for several reasons.
A subpoena for documents (sometimes called a subpoena duces tecum which is Latin for “bring with you under penalty”) is issued so that a party to litigation can obtain documents that relate to the issues being litigated in the case. For example, an insurance company may subpoena records regarding a patient’s medical history. Defendants to a lawsuit may subpoena medical records and insurance information for someone who is suing them for injuries. A subpoena for documents will request that you send all pertinent documents to the entity whose address is listed on the subpoena and will make it clear that the subpoena does not require your personal appearance. There will be a deadline to comply with the subpoena for documents, but as long as you mail any documents in your possession to the requesting party, you have fulfilled your duties under the subpoena. There is no requirement that you hunt down documents. If you don’t have the documents that are requested, you are usually safe responding with a letter to the requesting entity, stating that no such documents are in your possession or control.
Note that HIPAA may affect a physician’s response to a subpoena for medical records. Disclosure of patient information for legal proceedings is considered a “permissible disclosure” under HIPAA laws, but it is probably best to obtain a signed patient release and/or a court order before releasing a patient’s medical records in response to a subpoena. For hospital-based physicians who don’t keep copies of patients’ medical records, it is usually sufficient to write a short letter stating that the requested records are not within your possession or control.
Keep in mind that a subpoena for medical records may be the first step in the process of a patient obtaining information to file a lawsuit against you. Avoid any temptation to alter the medical records, and never send the original files to the requesting party.
Subpoenas may also be issued to compel a witness to testify either in a deposition or in court. If you are a party to a lawsuit and an attorney wants you to testify, you probably won’t receive a subpoena. You are already subject to the court’s oversight by virtue of your involvement in the lawsuit. When it is time for you to be deposed, you or your attorney will receive a “Notice of Deposition” that lists the place, date, and time at which you will have to appear. Just as with subpoenas, you are subject to sanctions if you receive a Notice of Deposition and do not show up. There is usually a significant amount of flexibility in the timing of the depositions. So, if you receive a Notice of Deposition for a time that creates a conflict for you, let your attorney know as soon as possible.
Subpoenas are frequently issued for non-party witnesses in both civil and criminal cases. There are two types of witnesses: Fact witnesses and opinion witnesses. Fact witnesses are called to testify about facts relating to a case, as in what the witness observed or heard. Fact witnesses might testify about traffic conditions just before an accident or about the statements someone made after an accident occurred. Factual testimony about a patient might include the fact that you saw the patient sweating, shaking, complaining of the worst headache of his life or with a blood pressure of 180/110. Anyone with knowledge of relevant facts can be called to testify as a fact witness. Expert witnesses are called to give testimony regarding opinions that are formed from a given set of facts. Experts must be qualified by their knowledge, experience, expertise and/or training regarding the subject matter.
Opinion testimony about a medical case might be that a blood pressure of 180/110 constitutes hypertension or that a subarachnoid hemorrhage may be in the differential diagnosis of someone who complains of the worst headache of their life. In general, only expert witnesses may give opinion testimony.
Subpoenas can also be issued in criminal cases. If the caption of the case lists “the people of your state” as the plaintiff, then it is a good bet that you’re being subpoenaed for a criminal case. If you don’t recognize the “defendant” in the case caption, don’t worry. The defendant may not be a patient you treated, but may instead be the person who injured the patient you treated. In criminal cases, an attorney (almost always a prosecutor) will subpoena a physician to provide medical testimony involving a potential crime. For example, the prosecutor might subpoena you to describe a patient’s injuries or to tell a jury about any statements that the patient made during the treatment. Similarly, if you treated a patient involved in a drunken driving accident, you might be called to testify about the patient’s injuries or whether the patient was intoxicated.
Responding to a Subpoena
A subpoena will always list the name, address and phone number of the entity requesting the witnesses’ testimony. That entity is responsible for paying you to appear at the deposition or trial. If the scheduled deposition time conflicts with your schedule, the party requesting a deposition usually has some leeway to change the timing. Have a couple of alternate dates in mind, and ask them to change. Court testimony is less flexible, but many times attorneys will allow you to be “on call” where you agree to be available during 1 or 2 days, and they agree to call you to come to court rather than forcing you to sit at the trial for several days. If you are going to be out of town when a deposition is scheduled, sometimes attorneys will agree to do a deposition over the telephone. If trial testimony may conflict with your schedule, attorneys may sometimes be willing to do an “evidence deposition” which can take the place of your live testimony during a trial. Again, ask them.
If you receive a subpoena, you may also consider requesting copies of relevant documents (i.e. the medical records) for review prior to the deposition. You may also request a copy of the complaint that has been filed to determine the parties and the type of case involved. The entity that issued the subpoena does not have to send you any documents, but you may still be able to learn information about a case online or at the courthouse.
While the law requires you to respond to a subpoena, those who serve the subpoenas are required to follow the laws as well. Each state has different laws regarding filing and serving subpoenas. So, it would be necessary to check the laws in your state or to ask a lawyer familiar with the process. Illinois requires witnesses to “respond to any lawful subpoena of which he or she has actual knowledge, if payment of the fee and mileage has been tendered.” In this case, a witness is required to respond to a subpoena if the witness knows about it – even if the witness has not officially received the subpoena. But, a witness may not be required to respond to a subpoena unless the witness has received the witness and mileage fee. In other words, a subpoena that arrives without payment of the witness fee may not be valid.
There also may be rules regarding where the testimony must take place. Under Illinois law, a deposition can only be taken in the county in which you live, in which you are employed or in which you “transact business in person.” Again, check online or ask an attorney regarding specific requirements for depositions and trial testimony.
Subpoenas in federal court are governed by Federal Rule of Civil Procedure 45. Rule 45(b)(1) requires that a party issuing a subpoena that requires personal appearance “tender the fees for 1 day’s attendance and the mileage allowed by law.” US Code Section 28 U.S.C. §1821 delineates mileage and witness fees for federal court. The witness fees also include tolls, parking fees and may include a “subsistence fee (define for the readers).”
If you have treated a patient and there is a possibility that you could be named in a lawsuit, be careful about providing testimony without legal representation. Admissions you make during your testimony could create the basis for an attorney to add you to the list of defendants in the lawsuit. If you receive a subpoena regarding a patient you treated who suffered a bad outcome, it would be wise to notify your malpractice insurer. By doing so, you protect yourself in the event that a claim is brought against you. In addition, the insurer will provide you with an attorney that will protect your interests during your testimony.
If you are a treating physician, state laws may also require parties to pay you a “reasonable fee” for the time you spend testifying. In other words, in certain states the physician may be entitled to receive compensation for being away from his or her practice. “Reasonable fees” for physician testimony vary widely, but generally average between $300 and $800 per hour, and may be even higher. I have personally heard of one neurosurgeon who charges $1500/hour for court testimony. Physicians with more knowledge and specialization are entitled to higher fees to compensate them for the time away from their practice. If you are required to drop a shift in the emergency department to attend your deposition and the requesting party will not change the date, your fee should reflect that monetary loss.
Some attorneys may attempt to circumvent paying a physician’s reasonable fee by stating that the physician is being called as a “fact witness” only. Don’t be misled. If you are a witness to a motor vehicle accident and testify about who went through a red light, you are a fact witness. If you are being asked questions relating to medical diagnosis or treatment, you are being questioned in your “professional capacity” and are likely being treated as an expert witness. Make sure that you agree on the compensation you will receive and the scope of your testimony in writing before you provide testimony. I have actually created retainer agreement delineating my fees, scope of testimony, and who will be responsible for paying my fees which an attorney must sign before I will schedule a deposition.
A review of all the facts of the case is important before providing opinion testimony. If you are told that you are being deposed only as a “fact” witness, but then are asked opinion questions, it is appropriate to state during the deposition that you were not retained as an opinion witness, that you were not given the opportunity to review all pertinent information in the case (such as the entire medical record and the testimony of the parties), and that you are not comfortable offering an opinion about issues in the case without reviewing all of the pertinent information.
If an attorney persists in demanding that you provide opinion testimony without allowing you to prepare for the deposition, do not give in to the badgering. Don’t render an opinion if you are not familiar with all the facts of the case. You may also consider contacting one of the senior partners in the law firm to complain, or file a complaint against the attorney and/or the law firm with the state bar association or the attorney licensing organization in your state. Do not tolerate unprofessional behavior from any attorney.
In summary, if you receive a subpoena, chances are that you have to respond to it. Calling the entity that issued the subpoena to find out more information and to arrange a convenient time for testimony is a good first step, but it is probably also a good idea to contact your malpractice insurer and run the scenario by an attorney first.
DISCLAIMER: You had to know that this was coming: Just as with medical cases, each legal case has unique fact patterns. This article is intended only for general information purposes and is not meant to be legal advice. If you have questions regarding a legal issue, please seek advice from an attorney in your area who is familiar with the subject matter.