You’ve been served—now what? Where ethical intersects legal

April 11, 2023
Doctors of optometry must weigh ethical duties and obligations to their patients when fulfilling legal requirements. The AOA offers over a dozen frequently asked questions for navigating legal proceedings.
Folder with stamped "You've Been Served" on it

While receiving a subpoena might seem intimidating, it’s not uncommon for physicians to receive multiple such legal writs throughout their careers and knowing how to respond can alleviate any anxiety.

In a new case study from the AOA Ethics & Values Committee, as well as an accompanying frequently asked questions (FAQs) reference guide from the AOA Legal Department, the AOA seeks to explain this common legal practice, provide general information on how to respond, and promote a dialogue about doctors’ ethical obligations to their patients, as well as any legal obligations to the court.

“Doctors of optometry should not fear communication from attorneys,” says Amy Falk, O.D., plainly. The AOA Ethics & Values Committee member and author of the case study “Ethical Issues Presented for a Doctor of Optometry When Served with a Subpoena” adds that it’s not only about knowing how to handle the circumstance but also about being mindful of the patient.

Subpoenas—formal written orders issued by a government agency or court—compel a party to produce evidence or to provide testimony. Often in the case of doctors of optometry, subpoenas take the form of documents requests, such as for patient medical records or information. For example, doctors may receive a subpoena for records concerning a work-related accident or injury with your diagnosis and treatment. While less often, doctors might receive a subpoena to appear in court to testify to the nature, type and extent of an injury.

In any case, doctors should pay specific attention to what the subpoena is requesting and relevant deadlines, as well as determine whether there may be grounds to object to the subpoena. The AOA Legal Department FAQ notes four reasons a doctor may object to a subpoena, including:

  1. Insufficient time to compile requested records or prepare to testify.
  2. If answering the request poses an undue hardship on the doctor.
  3. An overly broad or ambiguous request.
  4. A request to disclose confidential, proprietary or sensitive information.

So, what about HIPAA? Doctors are quite familiar with the fact that HIPAA restricts the disclosure of patients’ protected health information (PHI); however, they might not know that HIPAA permits sharing PHI in the event of a court order or the order of an administrative tribunal.

In the event a subpoena is issued by an attorney, the AOA Legal Department FAQ states: “the doctor can only release the requested PHI provided they have received satisfactory reassurance that reasonable efforts have been made to inform the patient of the request and that efforts have been made by the party requesting the information to secure a protective order from the court safeguarding the information, or that a release from the patient litigant allowing the information to be released has been secured.” This should be in the form of a written request and accompanying documentation of the attorney’s good faith attempt to notify the patient, provided that notice contained sufficient information about the action involving the patient’s PHI.

While the AOA Legal Department FAQ provides further information for doctors to review regarding the legal process, Dr. Falk’s case study delves into the ethical considerations at play.

“There is a legal balance between patient privacy and patient rights to access their records,” Dr. Falk says. “That is, we need to provide patients access to their records while being abundantly careful not to release protected information without explicit patient consent.”

Keeping the doctor-patient relationship at the heart of everything you do as a doctor remains paramount, Dr. Falk argues, and that’s particularly true in legal matters. Although the AOA Standards of Professional Conduct clearly notes that confidentiality obligations are not breached when doctors release PHI due to the legal process, the case study states, “the fact that a party in the suit is a patient or former patient can still impact your response.” Doctors are legally bound to comply with a valid subpoena, yet they may choose to keep patient interests in mind by communicating with them or their attorneys during the process.

Similarly, ethical issues arise when a subpoena requests a doctor’s testimony as an expert or fact witness. In either case, sworn testimony requires doctors to be true to the best of their knowledge. While professionals are never required to serve as an expert witness, should the doctor choose to do so, they must provide testimony that is balanced, fair and truthful or run afoul of the standards of professional conduct.

Read the full case study on members’ online learning platform, the AOA EyeLearn Professional Development Hub.

Have questions about an ethical debate?

The AOA Ethics and Values Committee routinely produces hypothetical case studies concerning ethical challenges and how best to approach such situations based on the AOA Standards of Professional Conduct, the AOA Code of Ethics and the Optometric Oath. Members may access these ethical case studies through AOA EyeLearn, including: 

Have an ethical challenge or question you wish to share? Submit your idea or a case description to legal@aoa.org. The case description may be reviewed by the AOA Ethics and Values Committee and featured in future Ethics Forum discussions.

Interested in professional ethics case studies?

Read more case studies and ethical discussions from the AOA’s Ethics & Values Committee on members’ exclusive, centralized education portal, the AOA EyeLearn Professional Development Hub.

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