A Checklist for Responding to Attorney-Issued medical Reord Subpoenas Without Violating HIPAA

resource-icon Created with Sketch.
  1. Review the subpoena. Is your patient a party (plaintiff or defendant)?

    • checkmark Created with Sketch. If no, and the patient is not a minor/incompetent, either move to quash the subpoena or request a Court order before producing the medical records.
    • checkmark Created with Sketch. If no, and the patient is a minor/incompetent, then check to ensure that the party requesting the records has signed a valid HIPAA authorization. If the party has signed a valid HIPAA authorization, go to No. 2 below. If the party has not signed a valid HIPAA authorization, you will either need to obtain an authorization, produce the records to the Court under seal, or move to quash the subpoena.
    • checkmark Created with Sketch. If yes, move to No. 2.
  2. Was the subpoena served on the patient (is there a cover letter and/or certificate of service that indicates that the patient has been provided a copy of the subpoena)?

    • checkmark Created with Sketch. If no, you will either need to obtain the patient’s authorization/consent or you need to move to quash the subpoena.
    • checkmark Created with Sketch. If there is no cover letter and/or certificate of service, call the attorney who sent the subpoena and ask and then obtain the response in writing.
    • checkmark Created with Sketch. If yes, move to No. 3.
  3. Has 10 days elapsed since the subpoena was served on the patient?

    • checkmark Created with Sketch. If no, contact the patient (or his/her attorney) and obtain in writing confirmation that the patient does not intend to file a motion to quash, OR
    • checkmark Created with Sketch. Wait 10 days before producing the medical records.
    • checkmark Created with Sketch. If yes, produce the records.

About the Author

Elizabeth Pharr McCullough

Elizabeth advises and defends health care providers in matters involving patient care issues and risk management issues. She has successfully handled numerous medical malpractice cases and has taken many of them to trial. She has obtained numerous defense verdicts in cases of alleged medical malpractice, a few of which are summarized on her “Milestones” page. Many of these cases involved catastrophic injury or death. Elizabeth…

More About Elizabeth