FLORIDA - RESPONDING TO SUBPOENAS AND OTHER DEMANDS FOR YOUR RECORDS AND TESTIMONY

January 1, 2008

Florida state laws and regulations that affect your medical practice

1. How can a Florida physician be sure that complying with a subpoena will not violate the HIPAA privacy regulations?

Pursuant to F.S. § 456.057(7)(a), medical records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient.

HIPAA privacy requirements represent the minimum permissible level of confidentiality. In other words, states may enact more rigorous privacy standards and HIPAA will only preempt (i.e. supersede) state privacy provisions that are less stringent than the HIPAA ones. In Florida, it appears that procedural requirements with respect to disclosure are LESS stringent than HIPAA while substantive requirements are MORE stringent than HIPAA. Therefore, if Florida law prohibits disclosure otherwise permitted under HIPAA, then disclosure is prohibited.

Except in a medical negligence action or administrative action when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

The recent case of Lemieux v. Tandem Healthcare of Florida, 862 So. 2d 745 (Fla.App. 2 Dist. 2003) summarized the procedural and substantive differences between the HIPAA and Florida statutes regarding privacy as follows:

. . . It appears that the HIPAA procedural requirements for disclosure are more stringent than those in Florida. Compare § 456.0579[7], Fla. Stat. 2002 (allowing disclosure of protected health care information to those entities falling within the statutory exceptions with no notice or opportunity to object), with 45 C.F.R. § 164.512(e)(1)(iii) (2003) (allowing for disclosure of protected health information for litigation purposes only if the disclosing entity has provided written notice of its intent to disclose with sufficient time for the individual to object to the disclosure). However, the substantive provisions of [Florida statute] section 456.057[7] are more stringent than those of HIPAA. Compare § 456.057[7] (prohibiting disclosure of protected health care information except to entities falling within the four statutory exceptions) with 45 C.F.R. § 164.512(e)(1)[ii] (allowing disclosure of protected health care information to any third party as long as "satisfactory assurances" are provided). Because Florida's substantive law on this issue is more stringent than HIPAA, Florida law controls and the HIPAA provisions would not alter the outcome.

Id. at 748 (emphasis added).

Based upon the foregoing, it appears that neither Florida nor HIPAA privacy law requires a patient's prior written authorization prior to disclosure of protected health information pursuant to a valid subpoena during litigation, as long as the HIPAA procedural requirements are followed (i.e., must provide proof that written notice was given to the patient with sufficient time for the patient to object).

It is important to remember that subpoenas are often overly broad and may request information which, as set forth above, is privileged. It is wise to err on the side of caution, responding to a subpoena in a professional manner but providing no information until you consult with an attorney and obtain confirmation that patient consent is either given or not required and/or notice requirements have been met.

2. What general rules should I keep in mind if served with a subpoena?:

(a) Alert your insurer if you're concerned that your testimony in a deposition might implicate you in a malpractice case.

(b) In responding to a subpoena, be sure not to breach HIPAA or patient confidentiality rules.

(c) Do not confuse a subpoena with a court order.

Remember, physicians are routinely subpoenaed to provide copies of their medical records and give testimony concerning care they have rendered. It should not automatically be a cause for panic. A subpoena does not necessarily mean you are being sued. Many are merely requests for a patient's medical records that are needed in, for example, a worker's compensation hearing or an auto accident claim. Regardless of why you have been served with a subpoena, you have to handle it very carefully.

GUIDELINES:

When served with a subpoena involving a case in which you have been sued for malpractice, contact your malpractice carrier immediately.

Notify your carrier if you have subpoenaed to testify in an existing case (usually by way of deposition), and you believe that testimony could implicate you. The subpoena might be a sign that a suit against you is under consideration, and your malpractice carrier will probably appoint an attorney to review the case, assist you in your response, prepare you for the deposition, and represent you when you testify. If you do not alert your carrier, but provide testimony or other information that implicates you in a medical liability case, your carrier could deny coverage if you are ultimately sued.

If the subpoena is no related to a malpractice action, but a lawyer simply wants records for an accident or disability case still proceed with caution. Despite the official look of the document, most subpoenas are just pieces of paper signed by an attorney. Even though they may appear to have been signed by a government official, they probably have not been. Attorneys are often authorized to sign officials' names.

Rules governing subpoenas vary from court to court and agency to agency. Your obligation to comply usually depends upon whether the document has been properly issued, signed, and served. To make sure that a subpoena is valid, determine (or ask your attorney to determine) what court or agency is involved, and whether the matter concerns a civil or criminal case. This information is generally available in the caption (the heading on the document that shows the names of the court and parties involved).

Providing information or testimony in response to an invalid subpoena, or one that improperly seeks privileged information can lead to serious problems if you breach physician-patient confidentiality or a patient's right to privacy.

Depending on the situation you may need to obtain a HIPAA-compliant patient consent to release the records or other information sought, or notify the patient that a subpoena has been issued for that information so that the patient can be given an opportunity to object to its release.

If the patient has not been notified, or objects to the release of his records, you generally should not comply without a court order. A subpoena is not a court order.

Subpoenas for patient records from certain state agencies may not require prior patient consent. In these cases, check with your attorney.

If you are being asked to provide expert testimony rather than fact testimony generally have a right to be paid for your opinion and that opinion cannot be compelled by subpoena.

Testifying in a legal proceeding can take many hours of time. If the time or place written on the subpoena is not convenient for you, ask the issuing attorney to change it. If you are required to testify before a court or other tribunal, ask the attorney to place you on two hour notice.

Your attorney can help you develop a policy for dealing with subpoenas. Once that policy is in place, you should not have to obtain a legal opinion in every instance.

3. What are Florida's general requirements regarding the issuance of subpoenas?

(a) Subpoena Generally. Subpoenas for testimony before the court, subpoenas for production of tangible evidence, and subpoenas for taking depositions may be issued by the clerk of court or by any attorney of record in an action.

(b) Subpoena for Testimony before the Court.

(1) Every subpoena for testimony before the court shall be issued by an attorney of record in an action or by the clerk under the seal of the court and shall state the name of the court and the title of the action and shall command each person to whom it is directed to attend and give testimony at a time and place specified in it.

(2) On oral request of an attorney or party and without praecipe, the clerk shall issue a subpoena for testimony before the court or a subpoena for the production of documentary evidence before the court signed and sealed but otherwise in blank, both as to the title of the action and the name of the person to whom it is directed, and the subpoena shall be filled in before service by the attorney or party.

(c) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein, but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive, or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. A party seeking production of evidence at trial which would be subject to a subpoena may compel such production by serving a notice to produce such evidence on an adverse party as provided in rule 1.080(b). Such notice shall have the same effect and be subject to the same limitations as a subpoena served on the party.

(d) Service. A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made as provided by law. Proof of such service shall be made by affidavit of the person making service if not served by an officer authorized by law to do so.

(e) Subpoena for Taking Depositions.

(1) Filing a notice to take a deposition as provided in rule 1.310(b) or 1.320(a) with a certificate of service on it showing service on all parties to the action constitutes an authorization for the issuance of subpoenas for the persons named or described in the notice by the clerk of the court in which the action is pending or by an attorney of record in the action. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things that constitute or contain evidence relating to any of the matters within the scope of the examination permitted by rule 1.280(b), but in that event the subpoena will be subject to the provisions of rule 1.280(c) and subdivision (c) of this rule. Within 10 days after its service, or on or before the time specified in the subpoena for compliance if the time is less than 10 days after service, the person to whom the subpoena is directed may serve written objection to inspection or copying of any of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. If objection has been made, the party serving the subpoena may move for an order at any time before or during the taking of the deposition upon notice to the deponent.

(2) A person may be required to attend an examination only in the county wherein the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by an order of court.

(f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.

(g) Depositions before Commissioners Appointed in this State by Courts of Other States; Subpoena Powers; etc. When any person authorized by the laws of Florida to administer oaths is appointed by a court of record of any other state, jurisdiction, or government as commissioner to take the testimony of any named witness within this state, that witness may be compelled to attend and testify before that commissioner by witness subpoena issued by the clerk of any circuit court at the instance of that commissioner or by other process or proceedings in the same manner as if that commissioner had been appointed by a court of this state; provided that no document or paper writing shall be compulsorily annexed as an exhibit to such deposition or otherwise permanently removed from the possession of the witness producing it, but in lieu thereof a photostatic copy may be annexed to and transmitted with such executed commission to the court of issuance.

Florida Rules of Civil Procedure 1.410

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.