Grand jury subpoenas in health care

Martin Merritt, Esq.

After nearly 40 years of handling health care malpractice cases, it has finally happened. The case that will answer the age-old question: “Can a DA actually indict a ham sandwich?”

The case of the ham sandwich

An in-house lawyer from a governmental (county) health care facility called me in a panic this week. He had just received his first-ever grand jury subpoena from the County District Attorney’s Office(and was clearly rattled.)

A patient’s relative had brought a patient a ham sandwich, the patient wasn’t able to swallow fully, and despite the arrival of paramedics in minutes from the first alarm, the patient did not survive.

The attorney representing the health care agency first received a 4590i (medical malpractice) demand letter from the family of the decedent. But, perhaps realizing that you can’t sue a ham sandwich (and the Tort Claims Act and governmental immunity is a very big problem in malpractice cases), the health care facility did not hear from the lawyer again.

Instead, the facility received a grand jury subpoena for employment records from the local DA.

The grand jury process 

The grand jury process is, as with many things the government provides us, a constitutional right in theory, which in practice is something of a “joke.” One that no one with any sense would snicker at. My clients receive these all the time in health care cases.

Google AI will tell you, “A grand jury is a group of citizens, typically 16 to 23 in number, convened to assess whether there is sufficient evidence (probable cause) to bring criminal charges against someone. They function as an investigative body, privately hearing evidence presented by a prosecutor and deciding whether to issue an indictment.”

It has been long observed that the grand jury is a secret, cloistered court with practically no oversight, no due process, no right to counsel, with a predetermined outcome which is all but dictated by the District Attorney or Federal Prosecutor.

In 1985, Sol Wachtler, then the chief justice of New York’s Supreme Court said, “Any good prosecutor can get a grand jury to indict a ham sandwich.”

That humor aside, grand jury subpoenas must be taken seriously, and you should always hire experienced counsel when responding to one. It is a state and federal offense in every jurisdiction to obstruct justice or a grand jury proceeding.

Martin Merritt is a health lawyer and health care litigator at Martin Merritt PLLC, as well as past president of the Texas Health Lawyers Association and past chairman of the Dallas Bar Association Health Law Section. He can be reached at Martin@martinmerritt.com.