Legal Questions and Answers Relating to Subpoenas

  1. What is a subpoena?

    A subpoena is a writ that is issued by a government agency, typically a court, to compel the production of evidence (usually documents) or to compel a person’s appearance to testify in a deposition.

  2. What are the two types of subpoenas?
    1. Subpoena duces tecum
      1. This is a request for documents, materials, or other tangible evidence.
      2. The subpoena should describe the item requested with sufficient particularity to enable one to produce the document or item.
      3. It should give a date that the documents are due and where one should send the documents.
    2. Subpoena ad testificandum
      1. A subpoena ad testificandum requires a person to testify, usually for a deposition, but it could also be before a court, or other legal authority.
      2. It should give the date, time, and location where the person is supposed to appear.
      3. It should also specify which party to the case the person is meant to appear as a witness for.
  3. Why would a doctor of optometry even receive a subpoena?
    1. It is not unusual for a health care practitioner to receive a subpoena for information about their patient. This is an event that is likely to occur to a Doctor of Optometry at least several times over the course of your career.
    2. Many times, a doctor of optometry is receiving the request for a subpoena because the condition that they are treating is the result of an accident at work, home, or another place.
      1. For example, if the eye injury was caused by a work accident, you will likely receive a request for documents concerning the nature of the injury, your diagnosis, and treatment from the state Division of Worker’s Compensation.
      2. If the injury occurred at home, you might find yourself dealing with an attorney for the home insurance company.
      3. If the eye injury occurred as the result of an automobile accident, you would likely find yourself dealing with the attorney for the automobile insurance company.
    3. You are more likely to receive a request for records but sometimes the attorney may demand your appearance in court so as to testify as to the nature, type, and extent of the injury.
  4.   What should a doctor of optometry do if they receive a subpoena?
    1. Carefully study the subpoena and determine exactly what the subpoena is requesting.
    2. Determine when the documents are due or when the testimony is required.
    3. Identify those employees who will need to search for any requested documents and where those documents may be located.
    4. Determine if you will be required to testify and what you will need to do to prepare for that testimony.
    5. Make sure to place a litigation hold on any requested documents. A litigation hold is as simple as requesting that your records administrator retain all practice records related to this matter even if it is records that you would usually destroy in the normal course of business. Under no circumstances should records related to the matter be destroyed.
    6. If insufficient time has been provided to search for records or to prepare for testimony, contact the requesting attorney to ask for more time. In most cases, an extension will be granted. If the requesting attorney is unwilling to be flexible, you can contact your own attorney for assistance with objecting to the subpoena.
  5. When should I object to a subpoena and on what grounds?
    1. There are a number of reasons why a doctor of optometry may object to a subpoena.
      1. One reason is if the due date on the subpoena does not give you sufficient time to compile the requested records or to prepare to testify.
        1. In this case, you may first simply ask the attorney who sent you the subpoena to extend your time to respond. Extensions will be granted in most cases.
        2. If the requesting attorney is unwilling to do this, you may have to hire a lawyer to file a formal objection to the subpoena in court.
        3. The basis of your objection would be that the court failed to provide sufficient time to gather data or prepare for testimony.
      2. Another ground for objection could be that answering the request poses an undue hardship on the doctor of optometry.
        1.  This argument is unlikely to get you totally out of answering the subpoena if it is for documents, but it may result in the court attempting to narrow the scope of the subpoena or granting you additional time to answer the subpoena.
        2.  You may have a better chance if the requesting attorney is asking you to come in and testify. If you are a sole practitioner with a packed schedule you may be able to convince the court that it would be sufficient for you to just forward records relating to your patient’s treatment.
      3. Another ground for an objection to a subpoena is the request is overly broad and or ambiguous.
        1. You should not have to waste your time on a lawyer’s fishing expedition.
        2. You have the right to demand a specific request for precisely what information is needed.
      4. Finally, you may object to the subpoena because it calls for the disclosure of confidential, proprietary, or sensitive information.
  6.   What about HIPAA? Does HIPAA prevent me from disclosing this information?
    1. Many Doctors of Optometry are aware of the Health Information Portability and Accountability Act (HIPAA) and the restrictions it places on the disclosure of client’s protected health information.
    2. However, they may not realize that HIPAA allows the sharing of your patient’s protected health information if the doctor of optometry receives a court order. This can include the order of an administrative tribunal.
    3. It is important to note that subpoenas can also be issued by the attorneys for either of the parties. In that case, you can only release the requested health information provided you 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.
  7. In the event a doctor of optometry is dealing with a subpoena that has not been issued by a court or an administrative tribunal and instead is faced with a subpoena issued by the attorney of one of the parties, what must the doctor of optometry do before releasing the requested information?
    1. The doctor of optometry can only release the requested health information 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.
    2. In particular, a doctor of optometry should request a written statement and accompanying documentation from the attorney demonstrating that the party requesting the information has made a good faith attempt to provide written notice to the individual at their current or last known address. Typically, litigants in lawsuits involving their own medical records will execute records release agreements earlier on in the process. Doctors should ask the requesting attorney for a copy of this release.
    3. The attorney should also prove that this notice contained sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court or administrative tribunal.
    4. Then the attorney also needs to indicate that the time for the individual to raise objections to the court has lapsed and either no objectives were filed, or any objections filed have been resolved by the court or the administrative tribunal and the disclosures sought are consistent with that resolution. For this reason, it is usually preferable to wait until close to the deadline to actually send records – this gives all parties a chance to object.
    5. The doctor of optometry can also check their own records to determine if they have previously secured a release from the patient that will allow sharing this information.
    6. As a rule of thumb, a doctor of optometry should be much more cautious if the attorney requesting the information is not your patient’s attorney. If that is the case, it is suggested that the Doctor of Optometry contact the attorney representing your patient to confirm that the necessary release has been secured or objections have been made and dismissed by the court.
  8. What should the components of a review of the records by the doctor of optometry be before the release of the records pursuant to the subpoena?
    a. Everyone who has been reviewing the records should forward them to one designated party. You should also review the documents before you turn them in. This is also a job you can assign to your attorney if you have one. These documents should be reviewed carefully for three purposes.
    1. “Is the document responsive to the subpoena? If the information is not responsive you do not need to produce it. You do not want to release something that is not relevant to the subpoena request but that could be used as the basis of a different claim against you, for example for disclosing confidential information about a patient without authorization.
    2. If the document is privileged, it does not need to be released. A document would be privileged if it is a communication between you and an attorney for the purpose of rendering legal advice or if it is a document you prepared at the direction of an attorney for purposes of litigation. Instead of releasing this document, you would list it on a privilege log and advise the party that served you the subpoena that it exists and provide some basic information about it.
    3. If a document is confidential-it contains sensitive financial information or trade secrets, you may request that a protective order be entered by the court that restricts the disclosure of the document to anyone else. You may withhold any confidential documents you intend to produce until the question of a protective order has been resolved by the court.
  9. Does a doctor of optometry really have to deal with this? Can I just not supply the requested records or bother to go to the court to testify?
    1. If a person fails to respond to a subpoena, they may be held in contempt of court.
    2. Failure to respond to a court ordered request (or contempt of court) can result in the imposition of a fine, imprisonment or both.
    3. Typically, you will not be released until you comply with the terms of the subpoena, or you file a successful motion to quash the subpoena. Because of these grave consequences, you should never ignore a subpoena!
  10.   Can I charge for my time spent responding to the subpoena?
    1. Typically, in federal court the responding party is presumed to bear subpoena costs, but the requesting party must avoid the imposition of an undue burden and expense. Similarly, at the state level, there is a presumption that the responding party will bear the cost of complying with discovery requests, unless the cost is significant.
    2. There are a number of issues analyzed by the courts in determining whether to shift the costs and fees associated with a subpoena to the party requesting the information.
    3. Some courts view shifting costs and fees as mandatory in situations where a nonparty is forced to bear “significant” costs. “Others may shift costs and fees only to the extent those costs are “unreasonable,” which is measured by (1) the nonparty’s size and economics, despite its lack of connection to the dispute, (2) defining “reasonable costs” so narrowly that the nonparty bears substantial costs or (3) eliminating attorneys’ fees from the cost-shifting calculation.”
    4. It would not be appropriate to charge your patients directly for your collection of this data. Instead, one would have to ask for payment directly from the requesting attorney, and possibly even file for reimbursement through the court (which would only order a mandatory payment from the other party if the costs of complying with the subpoena are significant and unreasonable).
  11. If I have to testify in court, would I be testifying as a fact witness or an expert witness?
    1. If you have not talked to the attorney prior to receiving this subpoena, it is highly likely that you are testifying as a fact witness.
    2. A fact witness is someone who is directly involved in the case in some way, such as a treating health care practitioner.
    3. If you are called to testify as a fact witness either in a deposition or in court, you will receive a subpoena specifying the time and date of your appearance.
    4. In particular for depositions (which take place prior to trial), the date and location of your testimony is usually negotiable. Also, there are limits to how far you can be required to travel in order to testify.
    5. If you have any questions about the subpoena, it is best to consult with your own attorney for advice.
  12. What does it mean to testify as an expert witness?
    1. An expert witness is procured by an attorney far in advance of the time to testify.
    2. An expert witness is a witness who is not involved in events of the case in any way but is instead called to give an opinion about some topic requiring special education or expertise.
    3. The work of an expert witness is entirely voluntary, and expert witnesses are typically paid for their time.
  13. Are there any ethical obligations imposed on a doctor of optometry when serving as an expert witness?
      a. The AOA Standards of Professional Conduct provide the following guidance on the topic of serving as an expert witness:
      1. Expert Testimony: When optometrists provide expert testimony within a judicial or administrative action, the testimony should be balanced, fair, and truthful based on scientific and clinical knowledge.
      2. A reasonable fee, which is not contingent upon the outcome, may be accepted
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