Subpoenas & Requests from Attorneys

  • Do I need to notify SMPH Risk Management or the UW Office of Legal Affairs when I receive a subpoena or request for information about a patient from an attorney?

    • No, so long as certain steps which are described below in this FAQs are taken prior to responding, you do not always need to notify SMPH Risk Management or the UW Office of Legal Affairs.
    • There are, however, some situations when you should contact the SMPH Risk Manager or the UW Office of Legal Affairs.  These include:
      • The matter involves a UW Health patient and you are concerned about the course of the patient’s care or about the care itself;
      • The subpoena requires your attendance at a deposition or trial within a short time frame and you would not be able to attend without canceling patient appointments;
      • You have any concerns about whether the request for information is valid or enforceable;
      • The subpoena asks you to bring materials or records you do not have or do not know if you can produce (for more information about requests for medical records see question 3);
      • You want advice about how to respond or need guidance related to testifying at a hearing or trial.
    • Additionally, if you receive: (1) a summons and complaint (the initiation of a lawsuit); (2) a notice of claim letter; or (3) a request to the Medical Mediation Panel you must contact the UW Office of Legal Affairs immediately.
  • How do I contact SMPH Risk Management or the UW Office of Legal Affairs:

    • SMPH Risk Manager: call Robert Ebbe at 263-2914
    • UW Office of Legal Affairs:  call 263-7400 and ask for the health law attorney on call
  • What should I do if I receive a subpoena or request for information from an attorney?

    • Before deciding how to respond, it is helpful to have background on what information the attorney is seeking and why.  In this case, have support staff contact the attorney’s office to get a better understanding of the request. For instance, sometimes an attorney is seeking information to assist in an insurance claim.  Other times, you may have treated the patient at issue and, while your care is not being questioned, the request for information may be related to a lawsuit against another provider.  Knowing how the information is going to be used may help you decide whether you want to provide an expert opinion or not (see question 9).
    •  Regardless of whether you want to provide an expert opinion, you may be required to appear in response to a subpoena to serve as a fact witness.  While you may not ignore a subpoena, you can only be compelled to provide fact witness testimony (see question 9).  Even if the subpoena requires you to appear at a certain date and time, attorneys will often work with your schedule if you call and request an alternate date.
    •  Some subpoenas seek only medical records or seek records in combination with testimony. Health care providers are not the custodian of the medical record. For any subpoenas or requests seeking copies of medical records, please contact Health Information Management at 263-6030.   Under no circumstances should you print information directly from the medical record to provide to an attorney.
    •  As described below, health information about a patient, written or oral, should not be released without an authorization from the patient, regardless of whether the attorney has provided a subpoena or not (see question 5).
  • Is a subpoena valid if it is from another state?

    • In most cases, it probably is not. If you receive an out-of-state subpoena, call the SMPH Risk Manager or the UW Office of Legal Affairs.
  • Is a subpoena or a request for patient information from an attorney sufficient to allow me to discuss my patient’s health information under HIPAA and state law?

  • What do I do if I am subpoenaed to testify at a hearing or trial and no patient authorization was included?

    • If there is not sufficient time to request an authorization, tell the judge you need a court order to testify. The judge can put a verbal order on the record at the hearing or trial allowing you to disclose your patient’s health information.
  • Does UW Health have a policy related to fees for medical-legal matters?

    • Yes, UWMF has a “Medical-Legal Fees Policies and Best Practice Guidelines” available on U-Connect here: https://uconnect.wisc.edu/depts/uwmf/patient-business-services/resources/name-12648-en.file
      • This policy requires that professional income collected for medical-legal matters is included within your UWMF receipts.  Suggested hourly rates are included within the policy, along with a template Fee Agreement for Depositions, Medical Testimony and Report Preparation.
  • Do I have to charge the fee rate set by UWMF?

    • If you are acting in the capacity of an expert witness or providing expert opinions (e.g. reviewing the care of another provider outside of UW Health at the request of his/her institution, testifying about the standard of care in a medical malpractice case not involving a patient of yours) you should charge the applicable fee rate.
    • If you are being asked for information about your own patient or about your treatment of your patient, it is up to you to decide whether you want to charge the fee.  If you are not an expert witness or providing expert opinions, you are only legally entitled to a statutory witness fee. However, some attorneys will agree to pay your hourly rate. But note, if you do not want to provide an expert opinion but still intend to seek your hourly rate, you should be very clear with the attorney seeking information of your intent not to be an expert witness to avoid later confusion.
  • Do I have to provide expert testimony?