You've Been Served! Now What?

Medical care providers often receive subpoenas for patient records.  They also receive subpoenas to appear at a deposition, hearing or trial and testify about patient treatment.  What medical providers may not know is that contradictions in California and federal law exist about when it is permissible to disclose information pursuant to a subpoena.  Inexperienced providers run the risk of violating the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") if they simply and quickly produce records or testify in response to a subpoena.

Generally, providers are served with subpoenas under California or federal law and in civil and criminal legal matters.  A subpoena typically includes information about how to comply with its requirements.  But, neither California nor federal subpoenas explain that additional requirements for complying with subpoenas are included in HIPAA.  And, while civil and criminal procedures for subpoenas may vary, HIPAA's rules apply no matter the type of subpoena providers receive.

Under HIPAA, attorneys may obtain a patient's medical records by court order or by subpoena without a signed patient authorization.  If by subpoena, however, medical care providers generally must determine (1) that the patient received notice of the subpoena for medical records, and (2) that the patient's notice includes sufficient time and enough information about the legal proceeding to allow the patient to raise an objection with the court. (If you're familiar with HIPAA, you can imagine that there also exist exceptions to these requirements.)  Usually, attorneys are willing to provide additional information requested by providers so that a provider can ensure HIPAA compliance.  Sometimes, however, providers are not able to get sufficient information to satisfy their HIPAA obligations within the time period required by the subpoena, and the only option is to seek timely relief from the Court.  It is always a good idea to check with risk management, a professional liability insurer or an attorney if you have any question about how to respond appropriately to a subpoena.