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Tips for handling subpoenas

The first time I ever received a subpoena I was terrified: was I being sued? If so, what did I do? The envelope was sitting there for me, waiting until I got back from my vacation (more on that later). It used terms like "You are commanded to" and "you will be held in contempt of court." I knew pharmacy law well but was ill-prepared to handle this issue, and quite frankly it is only natural considering law classes in pharmacy school do not prepare students to handle subpoenas when they enter practice.


Fast forward five or so years and easily over a hundred subpoenas later and let's just say it's become a little more routine. I currently work for a health-system that has a thriving orthopedic market so worker's comp claims, claims arising from injury in a store (uh oh - Mrs. Smith didn't see that yellow sign and slipped on the floor) are commonplace.


After receiving care the patient's lawyer needs to collect all the medical bills they incurred during their care and before you know it I've got the envelope arriving at my pharmacy via certified-mail with the obvious law-firm name on it. Most often you will get a "subpoena duces tecum," meaning instead of showing up to court you can supply the records.


What now? Here are some tips from my experience on handling them:


Tip #1: Never release records without consulting your risk management department (or your attorney)


I put this one at the top because this is the most important thing to remember. Risk management reviewing the subpoena is a policy at most organizations for good reason - responding to a subpoena incorrectly can lead to a civil suit by the patient or fines (ex. fines for privacy violations).


I'm definitely not a lawyer, so unless you are one of the few PharmD/JD's out there you should not be releasing records without an attorney reviewing it. If you work for someone else, you should not release records even if you are a PharmD/JD unless their risk management department has had a chance to review it; after all, it's their butt on the line.


Take a look at this article from a law firm describing regular receipt of subpoenas that "do not have an accompanying authorization or involve the production of too many patients’ records to realistically obtain consent from each individual."


In fact, most chain pharmacies have a policy of not even allowing the records to be released at the store level but rather directly from their risk management department. In addition, state laws can vary widely (see Tip #3 and Tip #4).


This excellent article outlines some good reasons (listed below, and explained in further detail in the article) your legal counsel might file a Motion to Quash the subpoena:

  • Improper service

  • Scope of Request

  • Confidential Material

  • Self-incrimination


Tip #2: Check the defendant and plaintiff in the lawsuit


It is a good idea to be sure the company, related companies, or an employee is not the one being sued. If it is the company, obviously they need to be notified but will likely already be aware of it; you would then follow company procedures, as in Tip #1. However, in that case the risk management department might really appreciate a heads-up that you are sending a subpoena for a lawsuit involving the company so they can flag it.


I hope it never happens to you, but this is a good time to mention it - if you get even threatened by a patient for a lawsuit you should immediately call your malpractice insurance (Yes you should have personal malpractice insurance! Don't rely on the company's).


Tip #3: Check for a Certificate of No Objections


After a subpoena is filed the opposite party has a period of time to object to the contents of the subpoena or to the subpoena being filed. Until that time has elapsed records cannot be sent. The party responsible for issuing the subpoena (usually a law office with pharmacy records) must certify that the time period to raise objections has elapsed and that no objections have been filed.


In Florida at least (and probably in most states) that needs to be given to you in writing and is referred to as a "Certificate of No Objections." Your attorney or risk management department will be checking for that but you can also easily learn to spot it and call the law office if it is missing; that will save both you and risk management some time.


Tip #4: Train your staff and respond quickly


The first time I ever saw a subpoena I was just getting back in from vacation and the staff pharmacist left it 'for the manager' - for a week. Unfortunately states set time limits on responding before you are in contempt of court and can get in trouble. In Hawaii, where I was working at the time, the time limit was 10 days so needless to say that was stressful. Be sure your staff:

  • Knows how to handle a subpoena (who to contact and how to print the required records)

  • Understands the high priority they should receive

  • Understands how to complete the subpoena request after risk management (or legal counsel) authorizes the record release. This includes confirming the fax went through and knowing what should be kept (See Tip #6)


Tip #5: Be aware of specially protected records


Some types of records still cannot be released with a subpoena unless specifically requested. To pull from another great article by Norcal, a professional liability insurer, on this subject:


"Subpoenas for Specially Protected Records

A subpoena seeking the release of general medical records is generally not sufficient authority to release genetic information, mental health, psychiatric and/or psychotherapy records, records of substance abuse treatment, or records that contain HIV/AIDS-related information. A court order may be necessary. If a physician receives a subpoena seeking the release of information in these categories, he or she should consult an attorney."


Tip #6: Keep all records, including the fax confirmation


Maybe it's overkill but I even keep the envelope used to mail the subpoena. Why is that? The post office has a stamp on it with the date it is mailed out; in the case that conflicts with the date listed on the law office's cover sheet or subpoena I have proof of when it was mailed and by extension when I would have reasonably received it. Thus I can prove I responded to the subpoena within the allotted time frame.


Also critical is that you keep the fax confirmation and be sure the fax went through! Then staple everything together:

  • The subpoena

  • The envelope it was mailed in

  • Any other written communication between you and the law office (if applicable)

  • The records that were released

  • The fax confirmation (be sure it has a time stamp)

File all of your subpoenas away in a separate folder in your filing cabinet for easy reference (I combine subpoenas and record requests into the same folder, but that's entirely up to you). Make a new folder at least once a year for subpoenas so they are well-sorted chronologically.

References

https://www.norcal-group.com/library/taking-the-fear-out-of-responding-to-subpoenas-for-medical-records


https://www.floridabar.org/the-florida-bar-journal/subpoenas-duces-tecum-vs-hipaa-which-wins/


https://alabamamedicine.org/physicians-be-cautious-when-responding-to-a-subpoena-or-request-for-medical-records/


http://www.dmlp.org/legal-guide/responding-subpoenas


Keywords: subpoena, legal, lawsuit, risk management, record keeping