Thursday, June 27, 2019
"Med Mal 101: Back to Basics" is 12-part series produced by Friday, Eldredge & Clark. Written by the attorneys in the Medical Malpractice Group, the content will be delivered monthly via email and is designed to give physicians and other healthcare providers information they need to know about malpractice litigation.
Part 6 of 12:
You Received a Subpoena - Now What?
What happens when a medical care provider receives a subpoena to testify about a patient or that requests copies of a patient’s medical records? In today’s regulated and litigious health care environment, it is important to contact legal counsel immediately upon receipt of a subpoena because subpoenas may involve privileged information and other issues that must be addressed in a short period of time. This article in our Med Mal 101 series discusses some of the initial things that a medical care provider should consider when he or she receives a subpoena in Arkansas state court. The rules in Federal Court differ in some ways. It is intended as general information for educational purposes only and is not legal advice. An attorney should always be consulted about a specific subpoena. Next month’s update will address additional privacy concerns that must also be considered. 
How will I receive notice of the subpoena?

A subpoena may be served, depending on the situation, by delivery, telephone, or mail. For example, a subpoena commanding someone to appear for trial, hearing or deposition may be delivered to the witness by the sheriff or his or her deputy, but it may also be served by any adult who is not a party to the case. Some types of subpoenas may be served by the sheriff or a deputy sheriff by telephone. In other cases, an attorney for a party may serve a subpoena by restricted delivery mail with a return receipt requested. Proper service depends on the specific situation so it is advisable to consult an attorney when presented with a subpoena to determine whether and how compliance is required under the circumstances. 
How do I know what is required of me?

As an initial matter, one should look at the subpoena to determine whether it asks for testimony, records, or both. A subpoena ad testificandum seeks oral testimony A subpoena duces tecum commands a witness to produce books, papers, documents, or tangible things. Often, a subpoena will request production of items and testimony. The first consideration, therefore, is to determine exactly what is being asked of the witness. 
How long do I have to respond?

The time period for response may be very short so it is important to contact your legal counsel immediately. Generally, when a proper subpoena commands someone’s presence at a trial or hearing in state court, a witness, regardless of his country of residence, is obligated to attend for examination at a trial or hearing with at least two days' notice.  See Ark. R. Civ. P. 45(d). When the subpoena commands a person’s presence at a deposition, the witness must be properly served at least five business days prior to the date of the deposition, absent a court order.  See Ark. R. Civ. P. 45(e). If a witness objects to the subpoena for some reason, he or she typically has 10 days after the service of the subpoena to object. If the time specified in the subpoena is less than 10 days, the person can object at any time before the time for compliance is due. 
What about expenses?

A subpoena to appear at a deposition, hearing or trial must be accompanied by a tender of a witness fee calculated at the rate of $30 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the deposition, trial or hearing.  If medical records are requested, guidance from the United States Department of Human Services provides that a records keeper may charge “reasonable, cost-based fee, provided that the fee includes only the cost” of labor for copying the requested protected health information, supplies for creating paper or electronic copies, postage, and preparing an explanation or summary under certain circumstances. There is also a $6.50 flat rate option, but this is not a “cap” on what may be charged.  For additional information regarding allowable fees for medical records see, U.S. Dep’t of Health and Human Services Guidance , regarding Individuals’ Right under HIPAA to Access their Health Information and 45 CFR § 164.524, (2016).
What about patient privacy?

Next month, we will focus on some additional considerations that must be observed in order to comply with patient privacy rules when responding to subpoenas.
Medical Malpractice
The information was written by the attorneys in the  Medical Malpractice Group  at Friday, Eldredge & Clark, LLP.

This information is not a substitute for legal advice and should be considered for general guidance only. 

For more information, please contact one of our   Medical Malpractice Attorneys.
Why Back to Basics?
In a recent study published in The American Journal of Surgery, the majority of general surgery residents surveyed felt that they were not aware of resources available to them in case of litigation. [1]

This is an unfortunate statistic since according to the American Medical Association, one in three physicians have been sued at some point in their career, and nearly half of physicians age 55 and older reported having been sued. [2]  

With this series, we will provide medical personnel practicing in Arkansas with a general overview of the legal process. We hope to dispel some common myths and to aid in a better understanding of what actually happens when a medical care provider is sued for malpractice. 
These articles are intended to provide general educational information only and cannot take the place of experienced legal advice.

Previous articles:

For a complete schedule of future articles, click here.
[ 1]  Beiqun Zhao, Luis C. Cajas-Monson, & Sonia Ramamoorthy, Malpractice Allegations: A reality check for resident physicians, 217 American Journal of Surgery 350-355 (2019).

[2]  Kevin B. O'Reilly, 1 in 3 physicians has been sued; by age 55, 1 in 2 hit with suit,  The American Medical Association (Jan. 26, 2018).
Medical Malpractice Group

When faced with a medical malpractice claim, healthcare providers require respected, experienced counsel they can trust to defend their practices and reputations. The attorneys in our Medical Malpractice Group are devoted to the defense of physicians, nurses, practice groups and hospitals in malpractice cases, which provides unique insight into the complexities of this type of litigation. 

At Friday, Eldredge & Clark, we are focused on providing our healthcare clients with consistently talented, ethical and efficient representation before state licensing boards and in all stages of litigation though jury trial and appeal. 
New Rule Strengthens Conscience Protections For Providers/Workers
Published in  Arkansas Medical News  (May/June)

The U.S. Department of Health and Human Services (HHS) recently announced its Final Conscience Regulation which broadens protections for individuals and healthcare entities that refuse to perform, assist in the performance of, or undergo certain healthcare services or research activities to which they may object for religious, moral, ethical or other reasons.

This final rule, which was issued on May 2, 2019, clarifies conscience rights that broadly protect individuals, healthcare entities, and providers from discrimination in healthcare by government-related entities “because of the exercise of religious belief or moral convictions.” A similar expansive rule was announced in 2008, but was replaced by a more limited interpretation of existing Federal laws in 2011. This new Rule effectively replaces the 2011 regulations with broader protections for conscience objections. 

Its purpose is to protect the conscience and associated anti-discrimination rights of individuals, and healthcare entities, as well as protect patients from being subjected to certain healthcare or services over their conscientious objection. Examples of the types of objections contemplated by the final rule are procedures such as abortion or sterilization services, and situations related to assisted suicide or euthanasia.

The final rule implements existing Federal laws and regulations to strengthen the enforcement of Federal conscience and anti-discrimination laws related to the HHS, its programs and recipients of Department funds.

Healthcare Attorneys
About the Firm

Friday, Eldredge & Clark, LLP serves business, non-profit, governmental and individual clients in Arkansas and across the United States. It is one of the oldest law firms in the state and has been the largest Arkansas-based law firm for more than 50 years. The firm has practice areas focusing on General Litigation; Class Action and Business Litigation; Railroad; Labor and Employment; Medical Malpractice; Public Finance; Healthcare; Estate Planning and Probate; Employee Benefits; Real Estate and Commercial Transactions; and Merger and Acquisitions. Friday, Eldredge & Clark has offices in Little Rock, Fayetteville and Rogers, Arkansas.
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