Doctors must educate themselves and particularly their staff on the legal obligations to protect the confidentiality of medical records and how to properly respond to subpoenas and requests for patients’ health information. It is a huge mistake for physicians to automatically assume that a subpoena or request is properly executed. Improperly releasing a patient’s medical records can result in a civil suit by the patient, an administrative fine by the federal government or disciplinary action by the state medical board.

Civil and criminal courts in the state of Alabama have the right to summon witnesses into court and require them to testify under oath. Subpoenas are issued to non-parties to a lawsuit; therefore, the healthcare provider is not a party to the pending litigation. Consequently, the method for securing the attendance of witnesses and records is by the issuance of a subpoena or a subpoena duces tecum, respectively. A subpoena is a written order compelling a person to appear and give testimony at a trial or other proceeding. The subpoena duces tecum is a subpoena compelling a person to appear, give testimony and bring all books, documents, papers or records described in the notice. A failure to respond could subject the health care provider to contempt of court. A patient's medical records are generally secured by a subpoena duces tecum, which is served on the person having actual custody or possession of the records, and typically request a patient's chart, x-rays and billing documents. In most cases, the party seeking the information is not requesting the physician or his staff to physically appear in court to produce the records.

Originally posted in MASA - September 2016.