When Someone at Your Practice Receives a Subpoena

December 20, 2017

Physician practices receive subpoenas for documents every day. Here's what your practice staff needs to know when you receive one.

Physician practices receive subpoenas for documents every day. Sometimes they are innocuous requests for records, other times the subpoena may be indicative of a more significant issue.  It's important to make sure that your practice staff is properly trained on how to respond to a subpoena in a calm and efficient fashion, particularly with growing investigation into health care fraud across the country. Here are some tips:

1. Look to see who sent the subpoena.  Depending on the type of subpoena, you may need to call your lawyer.  A subpoena for records as part of a malpractice or other routine matter may be something the practice handles on its own.  A subpoena from the state or federal government, or related to a case or agency with which you are not familiar, is a good reason to seek assistance.  My clients sometimes receive subpoenas from the U.S. Department of Justice (DOJ).  In such cases, I think advice of counsel is always appropriate. When in doubt, it never hurts to check with counsel.

a. It also is important to consult counsel if there are any questions regarding whether certain information can be disclosed under HIPAA and state privacy laws.  Depending on the underlying matter to which the subpoena relates, HIPAA may require certain steps be taken to secure patient privacy. Also, state law may impact this as well, particularly if the requested documentation contains mental health or substance abuse treatment records.

2. Do not be afraid to contact (or have counsel contact, based on the type of subpoena) the person responsible for sending the subpoena.  For example, in cases where a client receives a subpoena from the DOJ, a call can provide important information. Is the client a target of the investigation or is the subpoena just a fishing expedition for information?  Is the deadline strict or can it be extended?  What is the DOJ really looking for? Every case is different, but a friendly discussion by experienced counsel with the DOJ can put the client in a better position to understand the significance of any case or investigation, or put everyone's minds at ease completely.

3. In most cases, the subpoenas a practice receives is looking for documentation, whether emails, letters or medical records.  The practice should start to gather everything that is requested in a timely fashion and should make sure to review the subpoena carefully to be sure it understands exactly what is being requested and the scope of the materials.  Many subpoenas list a date range for the materials requested, or may be looking for information about certain physicians, certain vendors, or other identifying factors.

a.   There may be instances where the practice has none of the requested materials and should indicate such in its response.  Other times, although the practice might be able to gather materials, it does not make sense to do so.  For example, I had a practice receive a subpoena from the DOJ requesting information that could be found in an operative report which is maintained in PDF format in the practice's EHR (faxed by hospital).  The practice could not possibly search the scanned PDFs and, depending on the size of the practice and the request, the manual review of every record could be expensive and time consuming.  If the practice could communicate with the DOJ as to the hospitals where the original records could be located (and easily searched), this might resolve the issue.  Without communication of the issue, the practice may expend wasted time, money and energy.  Typically, everyone wants to take the most efficient and direct approach, even the person/agency who sent the subpoena!

4. In some cases, a physician or other individual in the practice may receive a substantially similar subpoena related to the same matter.  It could be related to work the individual did within the practice as an employee, or perhaps it is related to outside consulting work.  It is important to consult with counsel to see whether the practice should respond on behalf of both parties, or if separate counsel is needed.  Separate counsel is appropriate where the interests of the parties may not be aligned (or could reasonably diverge in the future) or where the individual performed consulting work through a separate entity.  There is no reason that the practice and physician's counsel cannot act cooperatively to the make sure that common documentation being requested of both parties is provided in the best possible manner.

It is essential that a final review of the collected subpoena documents be performed before anything is provided.  Has every request in the subpoena been satisfied?  Has a thorough enough search been made?  Has the practice indicated where nothing has been found?  Have the proper search terms/dates been reviewed? Is there anything being provided which creates concern for counsel about the practice's activities? Is an extension of time required?

Also, the practice always should keep a copy of the documentation it sent in response to the subpoena and proof of transmission/mailing. This could be important if there ever is a question whether the practice complied with the subpoena. 

Making sure to respond to a subpoena in a thorough and timely manner is important.  Make sure your practice is prepared and be sure you have counsel you can call on if you have questions.  There are also other types of subpoenas a practice can receive (i.e. testimony). Experienced counsel should be involved to help every step of the way.