Tuesday, November 14, 2017

Responding to a Subpoena or Summons

Nihal D'Cruz, Business Development Manager - Corporate Relations, MIGA  provide some guidelines for managing the production of medical records in response to formal legal requirements such as Orders for Non-Party Discovery and Subpoena/Summons to Produce Documents.
These guidelines below were developed in liaison with the claims solicitors at MIGA.

- Whenever you receive a formal request/requirement for the production of your patient records, you should notify the patient of the request and ascertain their attitude to the request. On occasion it might be the patient’s own legal representative that has issued the Subpoena.

- You should always be aware that your records may contain documents which are subject to legal professional privilege. Most often this would be in the form of correspondence from the patient’s solicitor to you and your response together with any notes of any discussions with the patient’s solicitor. These documents should always be placed in a separate envelope marked “legal professional privilege”.

- You should carefully consider the document which requires the production of records to ensure that you are aware of precisely what is required to be produced. For example, on many occasions, you will only be required to produce your records that relate to a particular injury or condition. Records unrelated to that injury or condition should not be produced. Another example is that you may only be required to produce records made on and subsequent to a nominated date. Records made prior to that date should not to be produced.

- In most cases, the records can be produced to the registry of the Court/Tribunal without the requirement for you to personally attend. The party issuing the Subpoena is required to meet the cost of conveying the records to the Court/Tribunal. Medical records being sent to the Court should not be sent by ordinary post, however, can be sent by registered mail. If original records are to be delivered, we recommend they be delivered in person or by courier.

- Bearing in mind that the “confidentiality” that attaches to medical records is that of the patient, in most cases if the patient has no objection to the records being produced then you need not concern yourself about taking steps to protect the patient’s confidentiality.

- Any records which concern counselling provided to a victim of a sexual offence are “protected communications” and in most cases the Court will not allow any party to have access to that material. Any “protected communications” should be placed in a separate envelope and identified accordingly. Reference to these records should also be made in a covering letter which accompanies the records.

- You should check to ensure that the medical records do not include records for any third party (such as a family member) or records which might have been mistakenly filed under the wrong patient’s name.

- If there is anything in the records, the disclosure of which may cause significant harm to the patient, you should consider isolating that material in a separate envelope and indicating your concerns in a covering letter.

- Where appropriate, you may wish to indicate in the covering letter that you request that only the legal representatives be granted access to the documents and that no copies of the records be kept at the conclusion of the litigation.

- If you object to the production of your records, you may do so either by setting out your objections in a letter to the Court (or in the case of the Family Court, in the document attached to the Subpoena), by attending in person or by arranging legal representation.

- If compliance with the Subpoena is going to require you to incur significant costs (for example retrieving documents from archives, spending considerable time sorting through old medical records or travelling significant distances) you should put the party issuing the Subpoena on notice of those costs and require them to confirm that they will meet those costs. If the party refuses to meet those costs, that would provide a basis for you to dispute your obligation to comply with the Subpoena or for it to be set aside. Furthermore, any Subpoena which is served upon you is required to be accompanied by conduct money, i.e. sufficient funds to enable you to comply with the Subpoena or, at least, an offer to meet any costs incurred in complying with the Subpoena. A failure to offer conduct money may render the Subpoena invalid.

- On occasion it will be satisfactory for you to produce a copy of your records. On other occasions your original records will be required to be produced. In that situation we recommend that you keep a copy of the records for ongoing working purposes. You are entitled to charge a reasonable administrative fee for copying your records. Furthermore, when assessing the costs incurred in complying with a Subpoena, the Court is likely to regard much of the work as being administrative in nature and as such will not allow any claim for costs by the doctor personally for completing the purely administrative work. Of course the Court will also recognise that much of the work can only be done by the relevant medical practitioner.

- Where original medical records have been produced to the Court, we recommend that the doctor or their administrative staff follow up the Court on a six-monthly basis to ensure that the records are returned at the conclusion of the litigation. The costs of returning the records should also be met by the party issuing the Subpoena and as such should be included in your initial claim for costs (i.e. the costs of a courier or mileage and administrative staff time associated with collecting the records from the Court/Tribunal).

If you have any concerns about compliance with a Subpoena we encourage you to call the Claims and Legal Services team at MIGA, or your medical indemnity insurer.

Guidance such as that provided in this article is just one of the many ways MIGA helps its insured clients. We offer superior cover complemented by expert medico-legal support that is available 24/7. If you are not insured with us, give us a call to see if MIGA can offer you more value and better protection. At MIGA, we are always here for you.

Nihal D’Cruz

MIGA Business Development Manager – Corporate Relationships

Insurance policies available through MIGA are issued by Medical Insurance Australia Pty Ltd. MIGA has not taken into account your personal objectives or situation. Before you make any decisions about our policies, please read our Product Disclosure Statement and Policy Wording and consider your own needs. Call MIGA for a copy on 1800 777 156 or visit our website at www.miga.com.au. The information contained in this document is of a general nature only and does not purport to take into account, or be relevant to your personal circumstances. This information is not intended to be nor should it be relied upon as a legal or any other type of professional advice.


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