NEW YORK - RESPONDING TO SUBPOENAS AND OTHER DEMANDS FOR YOUR RECORDS AND TESTIMONY

January 1, 2008

New York state laws and regulations that affect your medical practice

Do I need to appear and provide testimony in response to a subpoena?

Every person within the jurisdiction of a court has a legal duty to appear when properly commanded to testify. One must appear, testify and produce papers in court only when duly subpoenaed in a case pending before a court. Similarly, when subpoenaed to give testimony at a deposition, that subpoena must meet the requirements of the court's rules.

To be valid, a subpoena must be issued in a manner and form consistent with constitutional, judicial, and legislative authority, and must not compel testimony that is privileged or otherwise protected without giving the involved patient an opportunity to be heard.

How do I know if a Subpoena is Valid?

Despite the official look of the document, a subpoena is just a piece of paper, signed by an attorney. It usually has not been reviewed by a judge or other public official. Indeed, a subpoena rarely undergoes any official review or inspection. It may be valid or, then again, it may not.

In order for your or your practice manager to determine if the subpoena is valid, follow this five step analysis.

Step One: What Court is Involved?

Believe it or not, the rules governing subpoenas vary with the court involved and whether the matter involves a civil or criminal case. To determine the type of case and the court, examine the caption. It should tell you the name and type of the court - state or federal - and the nature of the action - civil, criminal or administrative. This article addresses only actions in New York State courts. Other states, and federal courts have different rules. In such cases an attorney should be consulted before responding to a subpoena.

Step Two: Were you Properly Served?

A subpoena is only enforceable if it is properly served. The rules of court describe in detail how a subpoena must be served. If the matter at issue is a civil action in New York, the court rules require that a subpoena be served upon you by a person 18 years old or older who is not a party to the action. Service can be made by delivering a copy of the subpoena to you together with an appearance fee (depending upon mileage but usually somewhere between $5 and $25). If the case is a criminal case, the fee need not be paid until your testimony is concluded.

Step Three: Is the Subpoena Properly Executed and Signed?

For a subpoena to be valid it must be properly drafted and executed. The subpoena must be signed either by a judge, the clerk of the court or by an attorney. It must state the name of the court and title of the action. It must also command each person to whom it is directed to attend and give testimony at the time and place specified.

Step Four: What Are You Being Asked to Do?

Your obligations vary depending upon whether the subpoena requires you to appear at trial or whether the subpoena is used to obtain pre-trial discovery. The language of the subpoena should tell you whether you are being subpoenaed to give testimony at a trial or for purposes of discovery. Generally, if the subpoena requires your testimony at a place other than the courthouse, it is a subpoena for deposition testimony. Rarely do depositions take place in a courthouse, and almost never in a particular courtroom before a judge. If there is any question, call the attorney who sent you the subpoena and ask. Your rights and obligations vary depending upon what you are asked to do.

What do I have to do if I receive a valid subpoena to appear at a trial?

GENERAL RULES:

Regardless of the reason for the subpoena, you should communicate with the attorney who has subpoenaed you, to assure that the matter will go forward at the time and place set out on the subpoena, and you should attempt to be placed on two hour notice, to avoid an unnecessary trip to court. If the attorney will not cooperate, attempt to reach the trial judge, if known, or the civil assignment judge for the county in which the trial is taking place, and ask her to intervene. Many judges will be willing to accommodate a physician's reasonable schedule and most attorneys will work with you to place you on notice, rather than requiring you to sit through hours or days of other people's testimony. Note, however, that courts have held that an on-call subpoena creates a continuing duty to appear and that a person is not released from that obligation unless a court directs. Sometimes an accommodation can be reach with the attorneys involved, and you might be able to testify after hours and have your testimony preserved for use later at trial in lieu of you having to go to court.

FACT TESTIMONY:

If you are subpoenaed to give fact testimony at a court, during a trial, the rules require that you appear at that trial, anywhere within the State, upon the payment of a witness fee and mileage. If your testimony is required by a state agency, you may also be required to appear anywhere in the State, depending upon the jurisdiction of the agency and the scope of the agency's powers.

EXPERT TESTIMONY:

While you can be subpoenaed to give fact testimony, you generally cannot be subpoenaed or compelled to give expert testimony. Expert testimony usually requires you to offer an opinion concerning the case - such as whether there was a deviation from recognized standards of care. If an attorney seeks your expert opinion, and you are willing to provide it, you have the right to be paid for your opinion. Expert witnesses generally charge between $250 and $600 or more per hour for their expert testimony at trial. If the attorney desires expert testimony, the physician and the attorney should agree, in advance, on the amount of money to be received (or the hourly rate). Beware, however, that once a physician agrees to act as an expert, and certainly once he has provided an expert report, failure to appear at a trial could result in legal action against the physician if the case is lost because there was no expert evidence. Of course, you can only be required to testify as to your honest opinions and conclusions.

A gray area exists when a treating physician is asked to render opinion testimony. To the extent that the treating physician is asked to merely recount the opinions he formed during the course of providing treatment, he may well be considered a fact witness, not entitled to expert witness fees. However, when the testimony sought goes beyond a factual recounting of the opinions relied upon by the treating physician for purposes of rendering that treatment, the treating physician may well become an expert and be entitled to additional compensation.

A treating physician should discuss with the patient's attorney the scope of his testimony and whether he will be compensated as an expert, before providing testimony. If the attorney insists on calling the physician solely as a fact witness, the physician may well chose to carefully limit the scope of his testimony to a recitation of the factual matters set out in his records.

RECORDS:

If your records are being subpoenaed for trial, you may be able to send a "custodian of the records," such as your office manager or administrator. The custodian will need to able to authenticate the records, as being the original medical records of the patient, maintained in the usual course of business and in the usual manner. Alternatively, with the consent of the parties, a certified copy of the original records alone may suffice, without the need for anyone to appear. Check with the attorney issuing the subpoena. If the attorney is not acting reasonably, you may, by motion, seek to quash or modify the subpoena. To do so, you will need to show that compliance would be unreasonable or oppressive. In a civil case, you can also ask the court to condition the subpoena upon payment of the reasonable cost of producing the subpoenaed records. If the physician must appear, that cost could include the value of his time away from the office.

What are my obligations if I receive a valid subpoena for pre-trial discovery?

A common method used by attorneys to obtain factual information concerning an underlying case, especially where the attorney is unable to obtain patient consent to obtain medical records, or where a question exists concerning the treatment rendered, is by subpoena for a deposition. The subpoena is ordinarily titled "Subpoena ad Testificandum" and calls for the physician's testimony at a time and place identified on the subpoena. The subpoena may also call for the production of records at the same time, in which case the subpoena is called as "Subpoena ad Testificandum and Duces Tecum."

If you are subpoenaed to testify as a fact witness at a deposition, generally you can have the deposition set for a time and place convenient to you, and be paid for your time. For a physician, these fees may range from $150 to $600 or more per hour, depending upon the physician's usual compensation and specialty. As a fact witness, you cannot, generally, be compelled to offer an opinion concerning care rendered. If your opinion is sought, you can, in most cases, refuse to provide it or agree to provide it only in return for compensation as an expert witness.

You may also be subpoenaed solely because an attorney wants your records. If your records are being subpoenaed other than at the time of trial, beware. Some attorneys, seeking either to circumvent the patient's right to privacy or to avoid paying you, will attempt to obtain records by issuing a "subpoena duces tecum" for your medical records to be produced, without your appearance.

A medical provider served with a subpoena calling for the production of a patient's medical records is not required to respond or object to the subpoena if such subpoena is not accompanied by a written authorization executed by the patient. A subpoena calling for the production of a patient's medical record is required to state in conspicuous boldface type that the records "shall not be provided unless the subpoena is accompanied by a written authorization by the patient."1 Absent a court order or a signed HIPAA-compliant release from the patient, a subpoena for records which does not meet the above criteria should not be honored.

1C.P.L.R. 3122 (a)
Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.