Public Health Law Map - Beta 5 - Medical and Public Health Law Site

f) Subpoenas
Subpoenas are written orders requiring that a person or documents be brought to a
certain place at a certain time. Subpoenas are issued under the authority of the
court, although in most situations they do not need to be approved by a judge.
Subpoenas may be issued to any person; they are not restricted to the parties in the
lawsuit. Subpoenas may be used to ensure the attendance of a person at a court
hearing or a deposition. These subpoenas must specify the place the person is to
appear and a time to appear. Subpoenas used at trials may require a person to
appear at a set time, or they may request that the person be available to testify
during the course of the trial. If the subpoena is not for a specified time, the judge
usually makes arrangements to give the subpoenaed person adequate notice of the
time when he or she is actually needed at the courthouse. In most cases, the judge
will also accommodate the person’s schedule as much as possible. The courts show
particular deference to physicians who request a reasonable accommodation.
Conversely, ignoring a subpoena, especially one to testify at a trial, can result in the
refusing party’s being taken into custody (arrested) and brought to the trial at the
judge’s convenience.
A medical care practitioner who is not a party to a lawsuit and who receives an
unexpected personal subpoena should talk to the attorney who sent it to find out
what he or she is being summoned to and why the testimony is necessary. He or she
should discuss rescheduling the appearance if it is unduly burdensome. If
agreements are made, the attorney must be asked to reissue the subpoena in
accordance with the changes. The attorney may also agree to withdraw the
subpoena and reach an informal agreement as to the time and place of the
physician’s appearance. The medical care practitioner should request that this
informal agreement be confirmed in writing and sent to him or her at once.
g) Subpoena Duces Tecum
These are subpoenas for physical objects. In the context of personal injury
litigation, they typically request the production of medical records, calendars,
office diaries, X rays, and any other physical record that concerns the medical care
of a specified person. Subpoenas for any relevant records are usually sent to
persons who are scheduled to give depositions. The records are usually those of the
plaintiff, but an attorney may issue a subpoena for the records of any person whose
medical condition is at issue in the lawsuit. In some situations, such as toxic
exposure litigation, the records of many patients may be subpoenaed. The attorney
is not allowed to keep the subpoenaed records but may inspect them and make
copies.
Attorneys usually do not issue a subpoena for records without first attempting to
obtain them through informal means. Since subpoenas may be issued without the
approval of the court, medical care practitioners should ensure that they are valid
before releasing records by calling the issuing attorney and determining the
circumstances of the case. In most states now, a subpoena for medical records
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