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Does Your Practice Properly Handle the Receipt of a Subpoena?

David R. Dearden
Kalogredis, Tsoules and Sweeney LTD
This article is reproduced with permission.
Kalogredis, Tsoules and Sweeney LTD Newsletter, Spring 1999

The receipt of a subpoena to produce documents or to provide testimony is an event of great legal significance. The production of medical records may be the first step in a malpractice or a disciplinary action. If the medical records are not handled properly, a patient may complain that his or her privacy rights have been violated. An investigatory subpoena may signal that a civil or criminal investigation concerning state or federal Fraud and Abuse laws has begun. A grand jury subpoena is a clear indication that a criminal investigation is underway. This article is a guide to the types of subpoenas that your practice may receive and provides general advice on the things to do and not to do upon receipt of a subpoena.

Identify the Nature of the Subpoena
Your staff should be advised not to offer any information to anyone serving a subpoena. If the individual serving the subpoena is an investigator for a state or federal agency, and insists on immediate access to documents, the individuals should be placed in a private office or waiting room, where they will be instructed to wait until counsel for the recipient may be contacted and given an opportunity to review the subpoena. No one should panic or show alarm. Things should be handled in a professional and businesslike fashion.

The individual exercising authority over the office on the relevant day should immediately determine the identity of the issue of the subpoena and the person responsible for the issuance of the subpoena. The following is a sample of the types of authorities that can issue subpoenas.

Court of Common Pleas
The most common subpoena is one issued by the Court of Common Pleas, at the request of a lawyer who is seeking records for purposes of civil litigation. Your office may respond to this type of subpoena by notifying the attorney within three (3) days from service of the subpoena that it will mail the records upon receipt of the fee specified by law.1 42 P.S.C.A. ß6152. Normally, the lawyer who has issued the subpoena can be contacted. A request for additional time to respond will usually be granted.

The Court of Common Pleas will also issue a subpoena at the request of a district attorney or the State Attorney General. 42 Pa. C.S.A. ß5905. On occasion, such a subpoena will request not only documents, but request that testimony be provided before a county or multi-county investigatory grand jury. These subpoenas must be handled with extreme care so that constitutional rights are not waived in the process of responding to the subpoena.

State Board of Medicine, Dentistry and Other Administrative Agencies
The Pennsylvania State Board of Medicine, like other professional boards, has been authorized by the legislature to issue subpoenas for records that are involved in administrative investigations. 63 P.S. ß422.9(c). In the event that medical records of a patient are requested in connection with the issuance of a subpoena by the State Board of Medicine, unless the patient provides consent, a court order is required before the medical records need to be produced. The issuance of a subpoena by a professional board is an indication that a patient complaint or some other issue is being investigated by an attorney with the Bureau of Professional and Occupational Affairs.

Office of the Inspector General
One of the most popular subpoenas to be used by a federal agency is the Inspector General subpoena. 5 U. S. C. App. 3 ß6, et. seq. This form of subpoena does not require any probable cause before it is issued. It is limited to the production of documents and cannot be used to compel oral testimony. The receipt of such a subpoena may simply signal a routine investigatory audit matter or it may involve more serious issues. It should be handled as if it is the first step in a criminal investigation.

United States Attorney General
Another investigatory tool is the civil investigative demand, that enables the Department of Justice to demand documents and oral testimony, in order to investigate civil or criminal conduct. 31 U.S.C. ß3733(a). Unlike the Inspector General subpoena, the civil investigatory demand may be issued only by the Attorney General.

United States District Court
One of the government's most powerful investigatory tools is the grand jury subpoena. Fed. R. Crim. P. 6(e). A grand jury can be convened at any time and has the power to subpoena documents and witnesses and may ultimately issue criminal indictments. Obviously, the issuance of a grand jury subpoena is the most serious of all subpoenas and it should be handled with the intervention of skilled counsel.

Maintain Control Over the Production of Documents
Your practice must never assume that an investigatory or audit subpoena is a routine matter. The practice must manage the investigation to maintain its credibility with law enforcement officials and to protect the privacy and all privileges that may be involved. The practice should designate one individual to maintain control of the information that is to be produced, so that all documents are reviewed, analyzed and copied prior to production.

Assert Applicable Privileges
The disclosure of medical records must also be handled with extreme care, because of the number of privileges that are potentially available. Communications by a patient to physicians, licensed psychologists, school personnel (school nurses and school psychologists), and sex counselors are all protected by statute. See 42 Pa. C.S.A. ßß5929, 5944, 5945, 5945.1. Mental health records are also entitled to strict confidentiality from disclosure, until the requesting party also obtains a court order. See 50 P. S. ß7111, 55 Pa. Code ßß5100.31-5100.39. In addition, 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. See 35 P.S. ß7601-7607. Finally, under both state and federal law, drug or alcohol records are entitled to confidentiality. See 71 P.S. ß1690.108.

Exercise Caution
We have seen situations where subpoenas were null and void because they were not issued by the appropriate authority or in accordance with proper procedure. Subpoenas are often overly broad and request information that may be privileged from disclosure. It is therefore vital that a provider acknowledge receipt of a subpoena in a prompt and professional manner and yet provide as little information as legitimately possible. To avoid unnecessary problems, counsel should be brought into the situation to analyze the scope of the subpoena and the rights of all of the parties involved. All privileges that could have been asserted will be deemed waived and lost if material is prematurely disclosed. All subpoenas are not alike, but your automatic response to the receipt of one should be professional, cautious and with due regard to your professional responsibilities.

1Except for record requests made by a district attorney or an independent executive agency of the Commonwealth, fees shall not exceed:

$15.00 search and retrieval fee
$ 1.00 per page for pages 1-20
$ .75 per page for pages 21-60
$ .25 per page for pages 61
$ 1.50 per page for copies from microfilm and postage, shipping or delivery charges.

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