What to do when you're handed a subpoena
By Alan D. Lash
Health Care Attorney
Lash & Goldberg
Miami
In these litigious times, it may seem that the only thing health care risk managers have time to do is respond to subpoenas for records - in every kind of case, from divorce to disability, malpractice to personal injury. Now more than ever, risk managers must be acutely aware of their responsibilities in responding to subpoenas and the risks of responding incorrectly.
This article offers a guide for risk managers in the event their hospitals are served with civil, criminal, or administrative subpoenas for records. The article will discuss general rules of procedure and the protections afforded certain types of frequently requested hospital records. The discussion presented is general and not specific to any one state. Of course, each state has its own unique procedures and rules regarding production of hospital records. When in doubt, you should consult those specific rules or an attorney familiar with the legal issues.
What's the time line?
When a subpoena for records is received, several important questions must be answered. The first is: "Where has the case been filed - state court or federal court?" The answer will determine how much time you have to respond to the subpoena and whether any privileges that protect certain types of information from disclosure may apply. Most states have their own rules of procedure regarding subpoenas issued in civil and criminal matters pending in the state courts. Cases pending in U.S. courts normally are governed by a different, uniform set of procedural rules. The differences sometimes can be important.
For example, in many cases, the party requesting the records will not require an appearance for deposition. Sometimes, however, a deposition also is requested. In those situations, federal and state court rules may differ as to where the deposition may be taken. In a federal court proceeding, a person may be required to attend a deposition not more than 100 miles from the place where that person resides, is employed, or regularly transacts business in person. In some state court cases, a person may be required to attend a deposition only in the county where the person lives or is employed. So once again, before you do anything else, you must find out where the case has been filed.
Which court has jurisdiction?
The next question you need to ask is: "When do I have to respond to the subpoena?" The answer to this question also highlights the need to answer the "where" question first. To determine when the response to the subpoena is due, you again must determine where the case is pending.
For example, in federal court cases, a hospital served with a subpoena must serve a written response to the party requesting the records within 14 days after the subpoena is served. If the subpoena requests documents to be produced less than 14 days after the subpoena has been served, the hospital must provide its written response to the subpoena on or before the day the documents are due.
In some states, state court rules may allow for longer or shorter periods of time to respond. In Florida, for example, a hospital must respond to a subpoena within 10 days after it is served. Again, the important point to remember is that you should always check to see where the case has been filed so you will know when you need to respond.
Perhaps the most important question to ask is this: "What documents have been subpoenaed, and are any documents privileged?" The subpoena, either in its body or through an attachment, usually will describe in detail the docu ments being requested. That part of the subpoena should be reviewed very carefully.
In its written response, the hospital must state any objections it has to the subpoena or to production of any of the materials requested in the subpoena. Objections may include that the hospital needs more time to comply with the subpoena or that the documents requested are confidential or privileged. If an objection is made, the party serving the subpoena shall not be entitled to inspect and copy the requested materials except pursuant to an order of the court from which the subpoena was issued. Great care should be taken to respond to a validly issued subpoena in a timely manner; untimely objections may be deemed to be waived.
They want your files
Requests for all kinds of hospital records are being made in a variety of lawsuits. Infor mation regarding employee or personnel evaluations is now routinely requested in divorce or custody cases. Information contained in cred entialing files, such as applications for staff privileges, is frequently requested by insurers defending disability cases brought by physicians. Several of the more commonly requested categories of hospital records, and the privileges that may apply to each, are discussed generally below.
Most states have enacted statutes that protect certain types of peer review and credentialing information from discovery. Many states have recognized a statutory privilege protecting a hospital's investigations and proceedings pertaining to medical staff membership, clinical privileges, and disciplinary actions against members of its medical staff. The applicability of the peer review privilege also has been affected by court decisions that interpret the scope of the privilege.
Know what's protected, what's not
The definition of what constitutes "peer review" materials has proven somewhat elusive, however. In many states, courts increasingly have adopted a broader definition of peer review materials. Early court cases limited the peer review privilege only to words spoken within the four walls of the peer review committee and records created by the committee.
More recent cases have expanded the scope of the privilege to protect any document considered by a peer review committee or board as a part of its decision-making process. The scope of protected peer review materials now arguably includes such documents as a physician's application for medical staff privileges and the hospital's delineation of privileges granted to a practitioner. Each state's particular statutory scheme and court decisions should be consulted to determine whether a particular category of documents is considered "peer review" and there fore protected from discovery.
One frequently litigated issue concerns whether the peer review privilege applies only in malpractice actions against a health care practitioner. Many courts have applied the public policy behind the peer review statutes in cases other than those against health care professionals.
The trend appears to be that the applicability of the privilege is not dependent upon the particular parties or nature of the litigation within which the "peer review" information is sought. In one relatively recent case, a federal court concluded that the "peer review" privilege prohibited an insurer's discovery of peer review and other credentialing information in an action relating to a physician's claim for disability benefits.
Hospitals should continue to assert the applicability of the peer review privilege to requests for peer review and/or credentialing materials regardless of the nature of the lawsuit or the party making the request. Hospitals should interpret the applicability of the privilege as broadly as possible and object, where appropriate and consistent with law, to the production of any materials that arguably could be considered peer review.
Like peer review materials, a patient's hospital and medical records are normally protected from discovery in most states by state statutes or a Constitutional right to privacy. Most states have enacted some form of prohibition against releasing medical records without the consent of the patient. In most states, patient records are confidential and must not be disclosed without the consent of the person to whom they pertain.
When served with a subpoena for patient or medical records, a hospital should take steps to ensure first that a subpoena has been properly issued and served, and second that proper notice has been provided by the requesting party to the patient or his or her legal representative. The hospital should require written proof that the requesting party has notified the patient or his or her representative and that no objection to production has been asserted. In the absence of written proof from the requesting party, the hospital should object to the production of the requested materials and allow the court to decide the issue.
State laws differ as to whether medical records of patients who are not parties to the underlying litigation are discoverable. In some states, non-party patient records may be produced if all patient identifying information is deleted. In those states, when producing non-party patient records, a hospital should take great care to delete all information that may identify the patient in any way. Such information includes, but may not be limited to, the patient's name, address, telephone number, social security number, date of birth, insurer, and information related to the patient's family members.
Employee records: When to object
Finally, several states have enacted statutes that protect from discovery certain records pertaining to the hospital's employees. These records may include evaluations of employee performance, including records forming the basis for evaluation and subsequent actions. These records are usually afforded a lower level of protection than peer review or patient records.
In states where these materials do enjoy some level of protection, a requesting party still may obtain them with authorization from the employ ee or with a court order. Nonetheless, a hospital should consider objecting to a subpoena that seeks protected employee records and allow the court to order their production if it deems the materials discoverable.
Subpoenas for every conceivable hospital record are becoming all too frequent. Risk managers need to be familiar not only with the privileges that may apply to the different records, but also with the procedures that dictate when to comply with a subpoena. When in doubt, risk managers should turn for guidance to legal counsel familiar with the particular substantive laws and procedural rules that apply in each state. As with most hospital situations, mistakes can be very costly.
(Editor's note: Lash practices extensively in the commercial litigation field, with an emphasis on resolution of business disputes in the health care industry. He is a member of the National Health Lawyers Association and the American Academy of Healthcare Attorneys, and he is certified by the Florida Bar as a specialist in health law.)
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