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

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

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. Therefore, if Pennsylvania law prohibits disclosure otherwise permitted under HIPAA, then disclosure is prohibited.

Pennsylvania law provides that the following patient information may be privileged and may not be disclosed without patient consent and/or notice, as the case may be:

42 Pa. C.S.A. s 5929

2. Communications by a patient to physicians, licensed psychologists and school personnel are all protected by statute.

42 Pa. C.S.A. ss 5929, 5944, 5945, 5945.1

3. Mental health records are entitled to strict confidentiality from disclosure, unless the requesting party also obtains a court order.

50 P.S. s 7111, 55 Pa. Code ss 5100.31-5100.39.

4. Records for HIV/AIDS patients are entitled to the strictest confidentiality and cannot be released unless the consent of the patient is provided on a particular form mandated by state law, or a court order is obtained.

35 P.S. s 7601-7607

5. Drug or alcohol records are also entitled to confidentiality.

71 P.S. s 1690.108

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.

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