So I Got A Subpoena…now what?
What is a subpoena?
A writ (or document) that commands someone to do something like appear in court, appear at a deposition, or hand over records.
How will I receive a subpoena?
They might be left at your home with a relative, posted on your door, given to you at your workplace, or very infrequently by mail.
At VCU, the VCU General Council accepts subpoenas and then e-mails them to you. They will do this for some physician personal matters too (divorce, landlord disputes, etc.)
Are there different types of subpoenas?
In general there are subpoenas that require you to appear in court, go to a deposition (give your testimony to a camera), or to simply produce documents.
What is the first thing I should do when I receive a subpoena?
Read it to see what it is asking for, and who the attorney is that issued it. It is YOUR responsibility to contact the attorney and comply with the order; however, your first step can always be CALL RISK MANAGEMENT or PROFESSIONAL LIABILITY at VCU. If you work elsewhere, there will always be a legal/risk management person for the hospital that can help.
If you are comfortable however, then you can respond as needed.
If I receive a subpoena does that mean I’m being sued?
Typically you are not the defendant if you are getting a subpoena. A defendant gets a “Summons” and “Complaint” where you will see yourself listed a defendant. If you get one of these, do not do anything before calling VCU General Council. Do not touch the patient record, do not tell all your friends, just call the lawyers.
Why would I receive a subpoena?
Criminal case- you treated the victim (most of the time) or the defendant and they need clarification about the treatment.
Civil case- you treated the plaintiff (person saying someone else hurt them)
Workers Compensation- you treated the worker who is injured
If I am busy, do I have to go?
This is a legal command to appear somewhere at a specific time. Unless the attorney issuing the subpoena has released you- YOU HAVE TO GO. If you have conflicts with the time, you must immediately let the attorney issuing the subpoena know to see if it can be rescheduled. If not…you have to go.
Can I charge them?
If you are a resident, you cannot charge. If you are an attending, you cannot charge for criminal cases. You might be able to charge for a civil case.
Am I an expert witness?
Retained expert witnesses are typically sought by attorneys and paid for their services. You will typically be contacted directly by the attorney before any subpoena is issued. If you receive a subpoena, you are not automatically an expert witness. You are providing facts about the case. Someone else will be called to help interpret them.
Can I just tell them to read the record?
No. You can tell the attorney issuing the subpoena that you do not remember anything else, but they may still need you to come and present the information.
I was an intern/resident when this happened so I do not have to testify right?
Wrong. You are not the defendant in the case, so you are being called because you have some facts they need. Your training level does not matter. If the janitor heard something, they can be called to testify. Just make sure you explain to the attorney who issued the subpoena that you were in training at the time. They can decide if they need you or not.
Do I need my own lawyer?
Usually not. If you are a defendant, you should not even have gotten to this point in the document. You should have called Professional Liability.
If you have any questions, talk to Professional Liability.
Am I allowed to talk freely with the lawyer issuing the subpoena about the care of the patient? (it depends)
Criminal case
Prosecutor (Commonwealth’s attorney in VA)- Yes
Defense Attorney- not likely. Talk to Professional Liability first
Civil Case
Plaintiff (patient) attorney- if they have signed authorization from
patient you may optionally give them information before the
trial/deposition.
Defense Attorney- same as above, but they are unlikely to have the
permission
Workers Compensation Case
Employer’s Attorney- The patient is not protected, you must tell them
everything.
Patient’s Attorney- You can OPTIONALLY tell them things.
Can I look at my chart to figure out what is going on?
After you have decided what kind of case it is, you may actually need to talk to the attorney issuing the subpoena to figure out what patient you are being called to comment on. Once you have a name, you can look at YOUR documentation related to the case. If you look at other’s documentation, you’ll be stuck talking about that as well. If unsure, call the Professional Liability people. Obviously you would never change a record.
What contact information should I give the attorney?
Your cell phone. Many cases settle at the last minute and you may get a phone call that day dismissing you from the case.
What do I do if the subpoena is only asking for records?
If it is patient records then you talk to Health Information Management (they can process these requests and make it all compliant). If they are asking you for VCUHS policies or departmental procedures- WATCH OUT. This is a no good. Call Professional Liability.
If I call the issuing attorney and they start asking questions, do I have to answer immediately?
No. Tell them you’ll like to talk to your hospital legal department and get back to them. You MUST get back to them, but you do not have to do it immediately.