Rx & The Law

"I Have Been Served With A Subpoena - Now What Do I Do?"

by Kenneth R. Baker, B.S.Pharm., J.D.
Vice President, General Counsel
Pharmacists Mutual Insurance Company

At about 4 pm, Frank received an envelope marked “Certified”.  Inside was an official looking document addressed to him as “Custodian of Records” for his pharmacy.  At the top was the identification of the Circuit Court for the district in which the pharmacy is located.  The next line read:  “Subpoena” and underneath that: “Order to Appear and/or Produce Documents”, and further down the page, after naming the plaintiff [wife] and the defendant [husband] in the legal action, were the ominous words: 

“YOU ARE HEREBY COMMANDED, that setting aside all manner of excuse and delay, you be and appear at Family Court Building, Room ___ at 9 AM on Friday, the ___day of _______________, 2008. 

To produce the following:  Any and all records of prescriptions filled in the name of [defendant/husband] from ________________ to ___________________.

At the bottom of the subpoena were the name, telephone number and address of the attorney for the wife who had prepared the subpoena and caused it to be sent to Frank.  The name of the court clerk was stamped on the subpoena along with the court seal.

Frank groaned when he considered how difficult and expensive it would be to hire a replacement pharmacist so that he could attend the hearing.  The last time he tried to find a pharmacist to work one day so he could take a vacation day it took almost three weeks to locate someone willing and able to work.  Paying someone to help out while Frank went fishing was one thing, but to attend his customers’ divorce hearing seemed beyond duty.

Frank called the attorney for the wife listed on the bottom of the subpoena and explained to her his problem and reluctance. The wife’s attorney was very sympathetic.  She told Frank that he did not need to take off work or hire a replacement or even attend the hearing.  All Frank needed to do, according to the lawyer, was send her a copy of the requested prescription records and she would introduce them into court without his testimony.  Frank was relieved.  He printed off a copy of the husband’s prescription record, sent it to the lawyer and quickly forgot about the entire incident.
Six months later Frank was reminded of the incident with a letter from the husband’s attorney, which read, in part:

Please be advised that I represent [the husband] in his claims against [the pharmacy] arising out of an unauthorized disclosure of confidential medical records.

Our preliminary investigation indicates that your facility released prescription records pursuant to [a subpoena], without a medical authorization, and in violation of my client’s right to privacy.  . . . You were never directed by . . . my client to release said records.  The records were produced . . . in violation of [state law].^[i]

Please contact the undersigned if you wish to discuss settlement of our claims.  If we fail to hear from you I will file suit on behalf of my client . . ..

Frank was surprised.  He thought the subpoena was an order from the Court.  Frank did not understand that in most jurisdictions a subpoena is prepared by one of the lawyers, without consulting with anyone.  The subpoena is not an order to share the material requested with the lawyers, but a direction to bring the records to the place where a deposition or, as in this case, the hearing is to be held. 

Had Frank done what the subpoena directed, rather than what the wife’s attorney suggested, he would have printed out the prescription record, made copies of the prescriptions, and showed up at the Court for the scheduled hearing.  Then, Frank would NOT have handed the records to anyone.  Instead, something approximating the following exchange would have happened:

Wife’s Attorney:  Frank, did you bring with you the records subpoenaed by me on behalf of my client?1.)
Frank:  Yes, I did.  They are right here.
Wife’s Attorney:  Please hand the records over to me.
Frank:  I cannot do so without a release from my patient or an Order from the Court.
Husband’s Attorney:  Your Honor, my client does not release his rights to confidentiality and I object to the production and disclosure of these records.

The Court would then make the decision as to whether the records should be ordered released over the objection of the husband. Regardless of how the Court ruled, Frank would have had the protection of acting pursuant to an order of the Court. 

The safer course of conduct for Frank when he received the subpoena would have been to call the patient whose records were being requested.  If Frank had received a release from the patient he could have forwarded the records to whomever the patient indicated in the release.  There are times when the attorneys for the parties have already reached an agreement as to the mutual release of records and will give permission to send the records to both attorneys. 

However, it is possible that the patient may object to the release of his records to his soon to be ex-wife.  In that event Frank could have suggested that the husband’s attorney contact him and, as an agent for the husband/patient, give him directions.  Had the lawyer for the husband been aware of the subpoena prior to Frank sending them to the wife’s lawyer, he could have objected to the Court and have asked the Court to dismiss (or quash) the subpoena. 

All else failing, Frank could have called his own attorney and explained the problem and expense of trying to find a relief pharmacist.  Frank’s attorney may have been able to quash the subpoena until the attorneys could agree or the Court issued its order.  Frank’s attorney could also have been able to have another person at the pharmacy accepted as “keeper of the records” and satisfy the subpoena without Frank or a pharmacist appearing.

Frank is not the first pharmacist who faced the question of how to respond to a subpoena.  Nor was Frank the first to receive a threat of lawsuit arising out of the method that the pharmacy used to react to such a subpoena.  The method Rite Aid used in one of its Rhode Island pharmacies resulted in an action for damages against Rite Aid in the case of Washburn v. Rite Aid Corp.^[ii].  As in Frank’s case, the Washburns were in the process of a contested divorce when Mr. Washburn's attorney subpoenaed Mrs. Washburn's prescription records from Rite Aid.  Also, as in Frank’s case, rather than bring the requested records to the deposition as stated in the subpoena, copies of the records were mailed directly to Mr. Washburn's attorney.  The Court in the Rite Aid case concluded there was an unauthorized release of records and damages could be sought against the pharmacy.

Pharmacists may think, as did Frank, that a subpoena is a Court order.  This misconception has been recognized by the Courts.  In State ex rel. Crowden v. Dandurand^[iii], the Court commented:

. . . Custodians often mail the records to requesting counsel instead of bringing them to the deposition as required by the subpoena.  A medical provider that reveals privileged information by mailing records in lieu of attending a deposition may be sued in tort for breach of the fiduciary duty of confidentiality.  [citations omitted]

Pharmacists must understand that a subpoena must be obeyed.  But, it must be read exactly.  If a pharmacist receives a subpoena for prescription records, the pharmacist should turn to the expert and ask his or her attorney how to respond.  The pharmacist cannot rely on advice given by one of the attorneys for the parties.  The pharmacist should not just give the records to the person requesting them unless a release signed by the patient or an order signed by the Judge is attached.  So, when you are served with a subpoena, what are you going to do?

[i] The purpose of this article is not to debate the attorney’s opinions as to the law of pharmacist confidentiality in his particular state, but to address possible responses to a subpoena.
[ii] 695 A.2d 495 (R.I. 1997)
[iii] 970 S.W.2d 340 (MO. En Banc. 1998)

This article discusses general principles of law and risk management. It is not intended as legal advice. Pharmacists should consult their own attorneys and insurance companies for specific advice. Pharmacists should be familiar with the policies and procedures of their employers and insurance companies, and act accordingly.