Foster Swift Health Care Law Report
Your patient/client has been accused of child abuse or neglect, and YOU have been served with a subpoena. What do you do now?
A Subpoena Has the Force of a Court Order
A subpoena is an order from a court that commands a witness to appear in court and give evidence at a hearing or trial. It may be either be a subpoena to produce records to the court or an attorney (or to be copied for court or an attorney) or to appear in person. The subpoena states on the front page what it is for.
A subpoena is enforceable when signed by an attorney, judge, or stamped by the clerk of the court where the matter is pending.
The form of a subpoena is prescribed by law. It must:
- identify the name of the court,
- identify the place where the hearing or record production is to take place,
- include the file designation and number assigned by the court, and
- include the title of the action in which the person is expected to provide evidence.
The subpoena will also inform the witness that failure to obey the subpoena may subject the witness to penalties for contempt of court.
A Subpoena Does Not Always Waive Confidentiality
As a general rule, a subpoena does not relieve a witness of any obligations to protect confidential information. In the case of child abuse/neglect, however, the obligation is for all practical purposes dissolved for most professionals, including doctors, health care professionals, and counselors/therapists. In fact, HIPAA expressly permits compliance with state laws that require the disclosure to a specified state agency of Protected Health Information in cases of suspected child abuse/neglect.
Michigan law requires that certain persons must report suspected child abuse or neglect to the Michigan Department of Human Services (DHS). Mandated reporters in Michigan include:
"A physician, dentist, physician's assistant, registered dental hygienist, medical examiner, nurse, person licensed to provide emergency medical care, audiologist, psychologist, marriage and family therapist, licensed professional counselor, social worker, licensed master's social worker, licensed bachelor's social worker, registered social service technician, social service technician, a person employed in a professional capacity in any office of the friend of the court, school administrator, school counselor or teacher, law enforcement officer, member of the clergy, or regulated child care provider." MCL 722.623
If the witness has concerns about disclosing confidential information, the witness should advise the issuer of the subpoena or the Court of those concerns, and thereafter should obey the Court's orders.
It is uncommon but not impossible that a subpoena, especially a subpoena for records, might not be from an authorized issuer. If the witness has reasonable doubts, (s)he should resolve them before turning over confidential records: ask for proof of identify, authority, or whatever additional information is needed.
The Subpoena Must Be Obeyed but the Date and Time Might Be Negotiable
The best approach for a person who is served with a subpoena, either to testify or to produce records is to obey the subpoena. The witness should not, however, assume that the subpoena is non-negotiable. Courts routinely re-schedule hearings, and a subpoenaed witness who anticipates a serious difficulty (e.g., the witness is scheduled to undergo surgery at the time of the court hearing) might be able to work out with the issuer a mutually convenient alternative date and time to testify. The hearing might also get re-scheduled at the request of someone else, so a subpoenaed witness should contact the issuer to confirm that the witness is actually going to be expected to give evidence at the date and time specified.
If in Doubt, Consult Your Attorney
If concerns (regarding confidentiality or otherwise) are beyond routine, if scheduling difficulties cannot be resolved by negotiation, if the anticipated evidence is likely to be difficult, or if the witness feels uncomfortable going forward on his/her own for any other reason, the witness should consult his/her own attorney.