subpoena to appear in court..questions

[vistaril]

Additionally, if I am forced to break patient confidentiality on this matter, I will never tell another patient that what they say is confidential. I might tell them I'll be vague in documentation to the point that records would be poor. And I might tell them I hope it stays confidential. But I'll also say "but you never know. A lawyer on one side or the other may just want to screw with people and force your records to be released, so be careful what you say to me".

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[TexasPhysician]

but what about when the patient doesn't consent? that's my situation here. What do you do then?

These questions are why I have an attorney. My initial thought would be to refuse without a court order signed by a judge. Attorneys are good at threatening people to get what they want.

 

[vistaril]

These questions are why I have an attorney. My initial thought would be to refuse without a court order signed by a judge. Attorneys are good at threatening people to get what they want.

this is my thought too(and what I am doing).

I guess what Im most curious about now is how will the court order go down. Do they just come present it to me and tell me what time to be there? Im working an hour away the next 3 days....are they going to drive that far to find me?

We'll see how it goes.

 

[psych md jd]

It is important to keep in mind that the attorney is an officer of the court.

Usually, it is only at trial when the attorney can tell the court that the subpoena was delivered [by declaration] and received [by the witness] and that the witness has not appeared.

The attorney could ask the judge for a court order. The judge could turn to the bailiff telling him to bring you in [NOW]. The sheriff/marshal is dispatched and picks you up and brings you eyeball to eyeball with the judge for a discussion as to why you disobeyed the subpoena. Or, a warrant could be issued for your arrest. Or, you could be fined. Or, you could lose your driver's license. Or, you could be jailed. And as a physician, the judge may refer this matter to the Medical Board.

When the judge is on your operating table, you are in charge. In his/her courtroom, s/he is in charge.

 

[vistaril]

If the judge asks me why I disobeyed the subpoena to turn over records I will say that my client did not give consent for me to.

you seem to have a lot of experience in this area, but what you are saying is a bit different than what I am reading. Most of the information out there online seems to indicate that I should *not* just turn over confidential records or testimony from just a subpoena.

 

[vistaril]

Also, isn't the whole point of the distinction between a court order and an attorney subpoena being that in the case of a court order the judge has decided that the necessity of obtaining the information is 'worth it' so to speak? I should point out that I didn't ignore the subpoena. I've just informed the attorney that I can't release that information at this point.

does patient confidentiality not mean anything if one sides attorneys just decide they want information.....no matter how ridiculous?

 

[psych md jd]

Appearing, testifying, and releasing records are all separate issues.

You need to be cognizant of the fact that a subpoena does not make you testify or release records. It only compels your attendance and/or to bring the records.

[Does your subpoena require you to bring the records? Mine usually don't because a subpoena duces tecum has been served on the custodian of records.]

Typically, what happens when I testify are that my credentials are reviewed. Then, the questions about the patient start. Before I answer, I ask the judge if the psychotherapist-patient privilege/confidentiality has been waived, discussion ensues between counsel and the judge, stipulations of waiver may be made, there may be a sidebar, and/or the judge gives a ruling as to whether I have to answer the questions ["The witness is directed to answer the questions."]

Things may be different in your state, but that's what I have done for 20 years.

 

[PsyDr]

Additionally, if I am forced to break patient confidentiality on this matter, I will never tell another patient that what they say is confidential. I might tell them I'll be vague in documentation to the point that records would be poor. And I might tell them I hope it stays confidential. But I'll also say "but you never know. A lawyer on one side or the other may just want to screw with people and force your records to be released, so be careful what you say to me".

If they put their mental state as part of their legal proceeding, it is 100% their breach. Not yours. It's similar to patients asking for their records to be sent to another provider. It is their action that breaks confidentiality.

Granted, most people do not understand this.

 

[smalltownpsych]

My understanding is the same as what the JD said. You have to show up. Then you tell the judge that you are asserting confidentiality and then he decides whether or not to waive it. Also, I tell this to my patients as part of the exceptions to confidentiality. Child or dependent elder abuse, danger to self or others, or court order.

 

[vistaril]

If they put their mental state as part of their legal proceeding, it is 100% their breach. Not yours.

how are they doing this though? They aren't consenting to anything. From their perspective them seeing a mh provider often has nothing to do with the case(and sometimes they are probably even right)

 

[smalltownpsych]

how are they doing this though? They aren't consenting to anything. From their perspective them seeing a mh provider often has nothing to do with the case(and sometimes they are probably even right)

Once the patient opens up their mental status as an issue in court, then the court will want all of the records and asserting confidentiality would be a waste of time. Now if it is the state who is asserting that the mental status is an issue, then it is a different story.

 

[psych md jd]

Via the patient-litigant exception:

http://apps.americanbar.org/litigat...otherapist-patient-privilege-connecticut.html

 

[vistaril]

Appearing, testifying, and releasing records are all separate issues.

You need to be cognizant of the fact that a subpoena does not make you testify or release records. It only compels your attendance and/or to bring the records.
.

thanks for the information. that clears things up a bit.

If that's true then it's a shame an attorney for one side in a case can force an unpaid appearance(several several several hours of valuable time) by throwing out a bs subpoena that has nothing useful to do with the case. That is seriously messed up.

 

[vistaril]

Once the patient opens up their mental status as an issue in court, then the court will want all of the records and asserting confidentiality would be a waste of time. Now if it is the state who is asserting that the mental status is an issue, then it is a different story.

yes of course the state is the one who is asserting that. It seems like in the vast majority of cases that would be the case.

 

[smalltownpsych]

yes of course the state is the one who is asserting that. It seems like in the vast majority of cases that would be the case.

The patient litigant exception mentioned above is when the patient brings it up. I would not want to disclose my patients private psychotherapy information just because the state wants it so I would be inclined to tell the judge that. Depending on the case, I might even be willing to refuse a court order if I am feeling particularly anti-establishment at the time. Although I think that the judge can keep you in jail until you comply though so might be a good idea to consult with an attorney before it gets to that point.

 

[vistaril]

The patient litigant exception mentioned above is when the patient brings it up. I would not want to disclose my patients private psychotherapy information just because the state wants it so I would be inclined to tell the judge that. Depending on the case, I might even be willing to refuse a court order if I am feeling particularly anti-establishment at the time. Although I think that the judge can keep you in jail until you comply though so might be a good idea to consult with an attorney before it gets to that point.

I suppose this patient litigant exception may be relevant for disability cases and plaintiff lawsuits(stuff where the patient wants something), but in 99.9999999999999% of initial cases involving agencies like dhr and cps, that's not relevant at all. It's not like dhr draws names randomly out of a hat to investigate.

if the judge orders me to disclose confidentiality information(vs going to jail), not only would I disclose confidential information but I would give the court the patients credit card information, library card number, and sams club membership information as well. I just don't want to disclose confidential information unless I have to.

 

[smalltownpsych]

I suppose this patient litigant exception may be relevant for disability cases and plaintiff lawsuits(stuff where the patient wants something), but in 99.9999999999999% of initial cases involving agencies like dhr and cps, that's not relevant at all. It's not like dhr draws names randomly out of a hat to investigate.

if the judge orders me to disclose confidentiality information(vs going to jail), not only would I disclose confidential information but I would give the court the patients credit card information, library card number, and sams club membership information as well. I just don't want to disclose confidential information unless I have to.

 

[PsyDr]

but in 99.9999999999999% of initial cases involving agencies like dhr and cps, that's not relevant at all

check your state's laws. There is usually an exemption for cps stuff in there.

The attorney could ask the judge for a court order. The judge could turn to the bailiff telling him to bring you in [NOW]. The sheriff/marshal is dispatched and picks you up and brings you eyeball to eyeball with the judge for a discussion as to why you disobeyed the subpoena.

Fun story: this actually happened to me once at a hospital. I got a phone call from a judge's office, asking to appear for a commitment proceeding that was happening in the next hour. I stupidly told the receptionist that I was busy with another patient and that my test results were not finalized. She politely offered to send an officer to escort me to court if I could not make it there myself.

 

[psych md jd]

With criminal and quasi-criminal cases, there may be a "crime/tort" exception to confidentiality codified in state statute.

At the federal level, HIPAA has specific law enforcement exceptions.

http://www.policechiefmagazine.org/...n=display_arch&article_id=1854&issue_id=82009

 

[vistaril]

With criminal and quasi-criminal cases, there may be a "crime/tort" exception to confidentiality codified in state statute.

At the federal level, HIPAA has specific law enforcement exceptions.

http://www.policechiefmagazine.org/...n=display_arch&article_id=1854&issue_id=82009

So between criminal cases, 'quasi-criminal' cases(which can literally be just about anything), and civil cases where the plaintiff reports distress as part of their claim initially, confidentiality is pretty much meaningless? What does that leave....like 6 cases in the entire country where confidentiality actually means something?

 

[psych md jd]

6 cases?

Seems to me that a past issue of Police Chief magazine said there were 8.

 

[vistaril]

Further update- it looks like now I'm just going to show up, say "I can't answer because of clinician-patient confidentiality" and see what happens. My guess is the judge will order me to answer right there. At that point, I will try to essentially just read the record when asked questions, but my guess(from talking to people who do lots of this) is that that isn't going to fly either and I will be ordered to basically say a bunch of damaging things to the patient.

I've certainly learned a lot from this, and not in a good way. I'm certainly going to change the way I answer when a pt asks "this is confidential right"? my new answer will be- there is a very good chance it won't be.

 

[NotAProgDirector]

I expect this has been mentioned earlier in the thread, but if you contact your medmal insurer they may refer you to a lawyer at their expense to help with this. The last thing they want is the patient suing you (and hence them) for a confidentiality breech.

I would also point out that (some) lawyers have a tendency to play on physician fears. One case I was involved with asked me to release to them all notes, emails, etc that had the resident's name in them. They threatened me with fines and jail if I didn't submit them. I contacted my legal dept, and they laughed. Point is, just because a lawyer is asking for something and threatening you with official looking paperwork, it may be bogus. I'm sure our MD/JD friends on this thread aren't like that...

If the court decides that the patient's records need to be part of the proceedings, then they will subpoena your records. The judge (and opposing counsel) should be trying to protect the patient's privacy. That's not your job -- your job s to follow the rules and not get snookered into releasing something that you shouldn't. If the records are admitted into evidence, then you can be asked questions about them and you should answer. But usually you can deflect questions that go beyond the records by claiming you are not an expert in this area, or that if you had such concerns that you would consult an expert in that area.

 

[TexasPhysician]

This is a case from years ago right? Did the subpoena include records? If awhile back and there is no subpoena for records, consider showing up and answering with a lot of "I don't recall".

 

[hamstergang]

when a pt asks "this is confidential right"? my new answer will be- there is a very good chance it won't be.

A very good chance? You're generalizing from this case way out of proportion.

 

[vistaril]

I expect this has been mentioned earlier in the thread, but if you contact your medmal insurer they may refer you to a lawyer at their expense to help with this. The last thing they want is the patient suing you (and hence them) for a confidentiality breech.

I would also point out that (some) lawyers have a tendency to play on physician fears. One case I was involved with asked me to release to them all notes, emails, etc that had the resident's name in them. They threatened me with fines and jail if I didn't submit them. I contacted my legal dept, and they laughed. Point is, just because a lawyer is asking for something and threatening you with official looking paperwork, it may be bogus. I'm sure our MD/JD friends on this thread aren't like that...

If the court decides that the patient's records need to be part of the proceedings, then they will subpoena your records. The judge (and opposing counsel) should be trying to protect the patient's privacy. That's not your job -- your job s to follow the rules and not get snookered into releasing something that you shouldn't. If the records are admitted into evidence, then you can be asked questions about them and you should answer. But usually you can deflect questions that go beyond the records by claiming you are not an expert in this area, or that if you had such concerns that you would consult an expert in that area.

another twist on this is that clinicians don't always own the records. I've heard plenty of cases of physician documentation of various forms being released that they had no control over to release or not release.

 

[vistaril]

A very good chance? You're generalizing from this case way out of proportion.

Obviously, when a patient asks that question what they are really asking is *IF* the sh** hits the fan and I need something to stay confidential(like for court), is it confidential? To that I would argue the answer is most likely not. 99.99% of stuff stays confidential because 99.99% of stuff nobody cares about finding out about. what matters is what happens to that 0.01% of stuff people do want to know about......

 

[PikminOC]

It will be hard to grind out patients on the day you are supposed to be in court...

 

[Therapist4Chnge]

Would you be comfortable in sharing your intake process and forms?

Seconded, please and thanks!

Here is what I ask as part of my clinical interview:

---------
Legal: Have you retained counsel? If so, who? For what purpose? Any legal cases? Ongoing? Planned? Previously? Related or not related to this injury? Any child custody cases either planned or ongoing? (Explain the difference btw a clinical eval & forensic eval) Do you agree that this is a clinical evaluation meant for treatment and to provide recommendations to assist the referring provider with your care?
---------

I document the answers from above in the report. I also include a section in my report that speaks to my role as a clinician, the context in which the report was written, the scope of my evaluation, and the limits of my findings. I do not want my work to be twisted or taken out of context, though I know it can still happen. I'd recommend consulting with a lawyer familiar with the applicable laws of your state, as they can offer recommendations for wording and explain the lawyer's point of view for dealing with medical records/reports and associated clinicians/experts.

 

[vistaril]

FINAL UPDATE: I testified and sang like a canary. I think I annoyed everyone with my insistence that the judge give me a verbal order to answer(apparently that's not that common....at most more of sidebars like jd md stated). But there was never any consideration on anyones part that I would not have to answer. And pretty much all the questions.

Its frustrating because the testimony I gave and records I provided was not only harmful to the patient but others as well. very harmful. And it was also likely not needed in this case, and one might even argue not even relevant to the case)although that's more debatable). It was just a total raping of any semblance of psychiatrist-patient priviledge. I guess one can make the argument that the patients lawyer should have argued that, but whatever.....my guess is that it would have been pointless and just pissed everyone off even more than my simple initial refusal to answer based on confidentiality.

My total pay(for missing 3/4s of a day of work): a 10 dollar parking pass validation......BUT that didn't even work because I parked in the wrong pay lot. Of course I didn't know this until it was too late. But the validation they gave me was for a lot NOWHERE CLOSE to the actual courthouse. I also had the pleasure of buying a 9 dollar turkey sandwich boxed lunch that tasted like Lysol.

So to recap: a missed 3/4ths of a work day, paid 23 dollars for lunch and parking, and relayed very private and hurtful information about a private session I had with a patient.

As I said, this was definitely a learning experience. Before this I thought like some of you guys- that there were ways to 'get out of it'(ask for lots of money? hahaha), that WE could determine what type of witness we would be(ie refuse to do anything but a strict recitation of the facts if uncompensated), and that these things could simply be shot down if we didn't like them. While there may be scenarios in which some of these things are true, in a lot of cases(like this one) there is no possible way to not get royally screwed over. I wondered whether if I had been working for a big organization with inhouse legal whether that would make it different, but the other psych there got screwed over just as bad(he actually had to give up parts of two days) and he works for a system that has bunches of lawyers.

Lessons learned:

1) avoid these lawyer types in every circumstance if at all possible
2) inform patients that they DONT have confidentiality in any real sense.
3) try to avoid seeing any patients where I could predict these things happening(for example if someone's chief complaint is that some govt agency recommended they come here, that's a patient that needs to be told to go somewhere else). I know that sounds harsh, but life is too short to waste time on this nonsense.

 

[vistaril]

Here is what I ask as part of my clinical interview:

---------
Legal: Have you retained counsel? If so, who? For what purpose? Any legal cases? Ongoing? Planned? Previously? Related or not related to this injury? Any child custody cases either planned or ongoing? (Explain the difference btw a clinical eval & forensic eval) Do you agree that this is a clinical evaluation meant for treatment and to provide recommendations to assist the referring provider with your care?
---------

I document the answers from above in the report. I also include a section in my report that speaks to my role as a clinician, the context in which the report was written, the scope of my evaluation, and the limits of my findings. I do not want my work to be twisted or taken out of context, though I know it can still happen. I'd recommend consulting with a lawyer familiar with the applicable laws of your state, as they can offer recommendations for wording and explain the lawyer's point of view for dealing with medical records/reports and associated clinicians/experts.

excellent.....I may start doing something like this as well. Basically just screen out any potential interaction with lawyer types.

 

[Therapist4Chnge]

excellent.....I may start doing something like this as well. Basically just screen out any potential interaction with lawyer types.

Patients can always lie, but it has saved me more than a few times to get out in front of some cases and avoid some others all together.

Some of the other things I do:

1. I typically only accept referrals from clinicians I know (or are known to a colleagues) and stick with certain patient populations.
2. Decline all referrals from lawyers (and known shills who work closely w certain firms that I think are questionable).
3. I ALWAYS get med records ahead of time, which includes a release to speak to prior providers. I book out 2-3mon in advance so that allows plenty of time to do this. If a pt. refuses, it is usually a red flag.
4. Developed a reputation as a provider that gets ppl back to work.

I am admittedly overly stringent, but it cuts down on the unknown variables and has let me develop solid relationships with my main referral sources.

As an aside, I don't mind lawyers or being deposed, I just strongly prefer to stay in academia and avoid the additional liability that goes w. forensic matters. As for the high fees, of course I can still get dragged into a courtroom, but it tends to cut down on the riff raff inquiries.

 

[vistaril]

Patients can always lie, but it has saved me more than a few times to get out in front of some cases and avoid some others all together.

Some of the other things I do:

1. I typically only accept referrals from clinicians I know (or are known to a colleagues) and stick with certain patient populations.
2. Decline all referrals from lawyers (and known shills who work closely w certain firms that I think are questionable).
3. I ALWAYS get med records ahead of time, which includes a release to speak to prior providers. I book out 2-3mon in advance so that allows plenty of time to do this. If a pt. refuses, it is usually a red flag.
4. Developed a reputation as a provider that gets ppl back to work.

I am admittedly overly stringent, but it cuts down on the unknown variables and has let me develop solid relationships with my main referral sources.

As an aside, I don't mind lawyers or being deposed, I just strongly prefer to stay in academia and avoid the additional liability that goes w. forensic matters. As for the high fees, of course I can still get dragged into a courtroom, but it tends to cut down on the riff raff inquiries.

with regard to fees though, as jd md said in a lot of cases they aren't going to pay anything. So they could care less what some provider says they will charge. They just give you a subpoena and that's your order to show up. They aren't sitting around saying "gosh, Id like this guy to testify but don't want to fork over the 800 bucks it would take". Instead they are saying "Im going to make this guy testify and give him a 10 dollar parking pass that doesn't even work". Now depending on what your records and testimony would be, it may not be in there best interest to call you if they aren't going to pay you, but that's not always the case.....

this is obviously a different case for expert witnesses, but the vast majority of us aren't being forced to go to court as expert witnesses. We are being forced to go to court as the treating clinician to describe what we did and saw.

 

[Therapist4Chnge]

with regard to fees though, as jd md said in a lot of cases they aren't going to pay anything. So they could care less what some provider says they will charge. They just give you a subpoena and that's your order to show up. They aren't sitting around saying "gosh, Id like this guy to testify but don't want to fork over the 800 bucks it would take".

I make it abundantly clear to the patient and their lawyer(s) that I'm fine with being deposed, but I'll be of little use to them. Since I'm not an ongoing provider, I can only testify to my findings at the time of evaluation, which occured months to years before. In most instances I don't hear from them again, though sometimes I'm still deposed and it ends up being a recitation of my report. Thus far I have always been paid at my forensic rate, so I don't mind the hassle as much if I can get some notice.

Some helpful phrases:
1. "I do not recall."
2. "Given that I have not evaluated the patient since [date], I cannot comment on his/her [mood/cognition]."
3. "Can you rephrase your question?" <--for any linked questions and/or questions that include a long narrative or that are purposefully convoluted. It is also very helpful to break up the flow of an aggressive lawyer or one that is trying to get you to slip up.
4. "Please refrain from [describe aggressive behavior] as it makes it difficult to answer your questions." <--a way to get on record any aggressive behavior by the lawyer(s). I have my own lawyer present who can step in, but I prefer to get it on the record because it tends to curb the behavior more quickly.

There are some excellent books out there about providing expert testimony, as well as books written by lawyers about cross examining experts. I'm a newb when it comes to most of this, but it's been an interesting area to learn more about (out of necessity). I'm slowly working my way through different chapters of, "Coping with psychiatric and psychological testimony" by Faust.

 

[touchpause13]

I really don't understand vis's point about confidentiality. Every psychologist or psychiatrist I've ever seen has told me these exceptions to confidentiality:
-abuse
-harm to self or others
-court order

Isn't that just standard procedure?

 

[notdeadyet]

Its frustrating because the testimony I gave and records I provided was not only harmful to the patient but others as well. very harmful. And it was also likely not needed in this case, and one might even argue not even relevant to the case)although that's more debatable). It was just a total raping of any semblance of psychiatrist-patient priviledge.

Then you might consider adding to the list of lessons learned that you might want to revisit how you do documentation. If what you wrote in the chart is "very harmful" if it gets out and amounts to "raping," then you need to rethink how you document.


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