Let Us Help You Decipher the Unknowns
When it comes to identifying subpoenas, they really are more in a family than a genus simply because they come in so many different varieties. So much in fact, that we can only discuss them from a generic standpoint considering we have 50 state civil court systems — not to mention 50 state criminal justice systems. For example, in California we have the Superior Court and a Supreme Court in terms of name and hierarchy.
Subpoenas from a state court system will have similar formats and structures, but may appear quite different when compared to another state. Suffice it to say that the most common creature you will encounter is a subpoena issued by your state court system, while out-of-state and U.S. District Court subpoenas are the likely exception. You will benefit from becoming familiar with your state’s format and structure. That said, there are traits common to all subpoenas we can discuss.
- They all require an action of some sort. It may be to produce documents and records, to provide a deposition, or both.
- They all have a time frame or date when the action is required, such as when records are to be produced or when a deposition will be done.
- They all must be “served," meaning given to you via a method of service defined by the issuing state court rules. For example — in person. Email and fax have yet to evolve as a means of “service of process."
- Subpoenas don’t cross state lines, meaning a state court’s “jurisdiction” is limited by its borders. For example, a Nevada state-issued subpoena is not valid when “served” on a party residing in California. In such a case, the party in Nevada must first obtain California “jurisdiction." Each state court system has its own methodology. The Feds are the exception – a U.S. District Court subpoena is effective throughout the U.S. and its territories.
- Remember that HIPAA applies to confidentiality until the time specified and conditions on the subpoena come into play. Only when the time comes to pass as stated on the subpoena are the HIPAA exceptions for disclosure in legal proceedings triggered.
- In California, most forms of subpoenas allow the person whose records are sought to “object” in advance of the disclosure, and if needed, to present “argument” before the court why their PHI should remain private. Other state systems have similar processes. Premature disclosure before the time and dates specified can land you in HIPAA trouble (see trait 5).
In closing, you will greatly benefit by understanding the genus and species of subpoenas that operate in your state. The wise person seeks advice if they encounter an unknown species. The Risk Management and Patient Safety Hotline can assist you in deciphering these unknowns and is available to respond to your questions about a variety of risk and patient safety topics. The hotline number is: 800-252-0555.
Lee McMullin is a Senior Risk Management and Patient Safety Specialist for CAP. Questions or comments related to this article may be directed to lmcmullin@CAPphysicians.com. This information should not be considered legal advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.