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

January 1, 2008

State laws and regulations that affect your medical practice

1. How can a Texas 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 Texas law prohibits disclosure otherwise permitted under HIPAA, then disclosure is prohibited.

Texas law provides that patient information is privileged and may not be disclosed except as follows:

2. Civil Proceedings:

a. Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed.

b. Records of the identity, diagnosis, evaluation or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed.

3. Exceptions in a Civil Proceeding:

a. When the proceedings are brought by the patient against a physician, including but not limited to malpractice proceedings, and in any license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a physician;

b. When the patient or someone authorized to act on the patient's behalf submits a written consent to the release of any privileged information;

c. When the purpose of the proceedings is to substantiate and collect on a claim for medical services rendered to the patient;

d. As to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense;

e. In any disciplinary investigation or proceeding of a physician conducted under or pursuant to the Medical Practice Act, or of a registered nurse, provided that the board shall protect the identity of any patient whose medical records are examined, except for those patients covered under subsection (a) above or those patients who have submitted written consent to the release of their medical records;

f. In an involuntary civil commitment proceeding, proceeding for court-ordered treatment, or probable cause hearing; and

g. In any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an institution.

4. Consent

a. Consent for the release of privileged information must be in writing and signed by the patient, or a parent or legal guardian if the patient is a minor, or a legal guardian if the patient has been adjudicated incompetent to manage personal affairs, or an attorney ad litem appointed for the patient, or a personal representative if the patient is deceased, provided that the written consent specifies the following:

1. The information or medical records to be covered by the release;

2. The reasons or purposes for the release; and

3. The person to whom the information is to be released.

b. The patient, or other person authorized to consent, has the right to withdraw consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal.

c. Any person who received information made privileged by this rule may disclose the information to others only to the extent consistent with the authorized purposes for which consent to release the information was obtained.

Texas Rules of Evidence, Rule 509

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.