Witnesses are called to testify in court through the issuance of a subpoena, sometimes delivered by a process server. Subpoenas may be issued by a grand jury or a court. Often, attorneys will issue subpoenas on behalf of a court. Subpoenas may require an individual to appear in court or may require an individual to bring records to court.
The target of a subpoena can appear in court requesting that the subpoena be quashed. The court may agree to do so if there is some legal restriction, such as physician-patient privilege or statutory protection for a record, as in drug treatment programs; the subpoena is overbroad; or the witness is unlikely to be able to provide material, relevant information. You can also contact the attorney issuing the subpoena. In some instances, it will become apparent that you do not have any information that is new or relevant to the case. In these instances, the attorney can withdraw the subpoena or reach an agreement that only portions of the record are needed.
Do not assume that upon receipt of a subpoena that you should immediately photocopy a patient record and turn it over. A subpoena does not necessarily overrule your obligation of privilege to a patient. If you believe that the information is privileged, that the patient does not want it revealed, and/or that some information in the record is irrelevant or harmful, it is your obligation to argue to the court, through a motion to quash the subpoena, that the record should not be submitted. In making these determinations, it is also important to remember that any document turned over to the court will be turned over to all parties, including the accused.
There are few instances in child abuse cases when a court will allow the restriction of relevant and material evidence, particularly a medical record, to be protected from discovery. In cases where there is a dispute as to whether a record should be turned over, the court may choose to review the record in chambers and make a determination regarding what, if any, information should be submitted. This in camera review is prior to turning the records over to the parties.
No subpoena should be ignored. If you have an attorney or are part of a hospital with an attorney, contact the attorney whenever a subpoena is received. Inform office staff regarding their responsibility when a subpoena is delivered. In a hospital setting, there should be protocols for issuance of medical records after a subpoena.
