Best Practices for Responding to a Fact Witness Subpoena

Executive Summary
 

A physician may receive a subpoena to appear at trial to testify regarding the medical care they provided for a patient involved in litigation with a third party (such as a divorce or custody case, car accident, slip and fall, worker’s compensation or product liability matter). If you are issued a subpoena, do not ignore it; follow the steps below in determining your response.
 

Recommended Actions
 

• Thoroughly read the entire subpoena to find all relevant information.
• Consult your legal counsel about any questions or concerns.
• Attempt to informally resolve any issues before submitting a motion to object.
   

A fact witness subpoena is an order requesting the recipient (such as a healthcare provider) to appear in court to provide testimony or provide specific documents (often called a subpoena duces tecum). Some jurisdictions only allow fact witness subpoenas that are issued by a court, while others also allow subpoenas that are issued by attorneys as officers of the court. Either way, if you receive a subpoena to appear in court, you cannot ignore it. If you do not respond in a timely manner, you could face financial penalties or a judgment against your healthcare organization.
 

Below is a step-by-step guide for responding to a subpoena requesting a treating physician (a physician who is not a named party in litigation) to appear in court to provide testimony or produce documents.
 

Step 1: Confirm whether the subpoena is valid
 

A fact witness subpoena must contain certain information to be valid. For example, federal law mandates that subpoenas must 1) state the name of the court issuing the subpoena, 2) state the title of the court proceeding and its civil action number, 3) clarify whether the responding party must appear, testify, or produce documents, and 4) provide information to the responding party about their rights to object to the subpoena and duties to respond to the subpoena.
 

If the subpoena is from an out-of-state court, it is likely invalid unless it has been properly domesticated. This means a request to make the subpoena valid has been made with the local court according to state law. 
 

Step 2: Determine who issued the fact witness subpoena
 

Check to see who issued the subpoena. This information is usually found on the last page of the subpoena or on the cover letter. The name should also be in print next to the signature. 
If the subpoena is signed by a judge, it is a court order and you must comply with the subpoena and provide the requested information via document production and/or appear in court at the date and time requested.
 

If the subpoena is signed by a court clerk or attorney, it is not a court order and you have more leeway to have the requesting party work with you and your schedule. Instead of a request to appear in court, you can ask to do a video deposition at a date and time that is convenient for you.
 

You should not proactively block your schedule when you receive a subpoena signed by a court clerk or attorney; instead, have these parties work with you to determine a satisfactory solution for you and your healthcare organization. This is because attorneys will proactively send out a fact witness subpoena to appear at trial for a date 4-6 months before the trial. However, the majority of cases settle before trial, which ultimately does not require the physician to block their schedule and reschedule patients.
 

You can also attempt to request reasonable fees for your time in accordance with your fee schedule. For guidance on reasonable fees, consider reaching out to your healthcare organization’s preferred medical malpractice attorney, who can provide insight into current market rates based on your specialty.
 

Step 3: Determine if you have a valid objection
 

While you may object to a subpoena subpoena duces tecum, the objection must be based on issues with either the validity of the subpoena or the nature of the requests, not simply because you don’t want to be involved in the matter. Valid objections would include the following:
 

• The subpoena did not give the statutory amount of time to respond
• You need more time to respond
• The subpoena was issued to an incorrectly named entity
• The request was overly broad and unduly burdensome
• The request would require the production of trade secrets
   

If you notice any issues with the subpoena, contact the issuing party as soon as possible to informally resolve the issue. After it is resolved, send a written email confirmation to the issuing party outlining the changes. Include the date of the request, with whom you spoke, the agreed-upon resolution and the new date production will occur.
 

If an informal resolution is not possible, then you might need to file a formal, written objection to the subpoena with the court. You may ask the court to deny or modify the subpoena in whole or in part. This filing will typically hold the time you have to respond to the subpoena until the judge rules on your objections.
 

A court must quash or modify a subpoena if it does not allow a reasonable time to comply, requires travel of more than 100 miles, requires disclosure of privileged information, or creates an undue burden. However, a court may quash or modify a subpoena if it requires disclosing confidential information or disclosing an un-retained expert’s opinion that does not include specific matter in dispute. You remain obligated to respond to the subpoena unless you have a court order quashing or modifying the subpoena,
 

Contact your legal counsel to assist with court filings. Again, be aware of response deadlines because missing deadlines may waive your ability to object to the subpoena. 
 

Step 4: Notify MagMutual 
 

MagMutual policyholders should submit an incident report notifying MagMutual of the subpoena. While most fact witness subpoenas are deemed low risk and MagMutual typically does not assign counsel, it is a best practice to proactively notify MagMutual.  
 

Lessons Learned 
 

• When issued a subpoena, be cautious before handing over patient health information because some of it might be protected from disclosure.
• You can object to the subpoena if you have proper cause.
   

Potential Damages
 

Disclosing PHI or other private health information that is not requested by the subpoena or not appearing in court could result in fines or discipline from the court.