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Responding To A Subpoena in Illinois

August 29, 2009

As this is article is for general information and each case has specific fact patterns, do not consider this article as legal advice.

A subpoena is an order to appear and testify before a court. The word comes from the Latin phrase sub poena meaning “under penalty.” Most subpoenas will state that “your failure to appear in response to this subpoena will subject you to punishment for contempt of this court.” In other words, if you receive notice of a subpoena and don’t show up at the assigned date and time, the court has the ability to sanction you. Subpoenas can be issued for several reasons.

A subpoena for documents (sometimes called a subpoena duces tecum which is Latin for “bring with you under penalty of punishment”) is issued so that a party to litigation can obtain documents that relate to the issues being litigated in the case. For example, an insurance company may subpoena records regarding a patient’s medical history. Defendants to a lawsuit may subpoena medical records and insurance information for someone that is suing them for injuries. A subpoena for documents will request that you mail documents to the entity whose address is listed on the subpoena and will make it clear that the subpoena does not require your personal appearance. In Illinois, standard subpoenas for documents state that “THIS IS FOR RECORDS ONLY.” There will be a deadline to comply with the subpoena for documents, but as long as you mail any documents in your possession to the requesting party, you have fulfilled your duties under the subpoena. There is no requirement that you hunt down documents not in your possession. If you don’t have the documents that are requested, you are usually safe responding with a letter to the requesting entity stating that no such documents are in your possession or control.

Note that HIPAA may affect a physician’s response to a subpoena for medical records. Disclosure of patient information for legal proceedings is considered a “permissible disclosure” under HIPAA laws, but it is probably best to obtain a signed patient release and/or a court order before releasing a patient’s medical records in response to a subpoena. For hospital-based physicians who don’t keep copies of patients’ medical records, it is usually sufficient to write a short letter stating that the requested records are not within your possession or control.

Keep in mind that a subpoena for medical records may be the first step in the process of a patient obtaining information to file a lawsuit. Avoid any temptation to ever alter the medical records and never send the original files to the requesting party.

Also note that physicians are entitled to a reasonable fee for copying records under Illinois Compiled Statutes Section 735 ILCS 5/8. These fees change with inflation each year. Currently a handling charge of $23.78 in addition to “per page” charges ranging from $0.30 to $0.89 are in effect for 2008. The updated rates can be found at the Illinois Comptroller’s web site.

Subpoenas may also be issued to compel a witness to testify either in a deposition or in court.

If you are a party to a lawsuit and an attorney wants you to testify, you probably won’t receive a subpoena. You are already subject to the court’s oversight by virtue of your involvement in the lawsuit. When it is time for you to be deposed, you or your attorney will receive a “Notice of Deposition” that lists the place, date, and time at which you will have to appear. Just as with subpoenas, you are subject to sanctions if you receive a Notice of Deposition and do not show up. There is usually a significant amount of flexibility in the timing of the depositions, so if you receive a Notice of Deposition for a time that creates a conflict for you, let your attorney know as soon as possible.

Subpoenas are frequently issued for non-party witnesses in both civil and criminal cases. There are two types of witnesses: Fact witnesses and opinion witnesses.

Fact witnesses are called to testify about facts relating to a case, as in what the witness observed or heard. Fact witnesses might testify about traffic conditions just before an accident or about the statements someone made after an accident occurred. Factual testimony about a patient might include the fact that the patient was sweating, shaking, complaining of the worst headache of his life, or had a blood pressure of 180/110. Anyone with knowledge of relevant facts can be called to testify as a fact witness.

Expert witnesses are called to give testimony regarding opinions that are formed from a given set of facts. Experts must be qualified by their knowledge, experience, expertise, and/or training regarding the subject matter. For example, an engineer would probably not be qualified to testify about whether a surgery went awry. Opinion testimony in Illinois must be relevant and must be generally accepted within the field of the subject matter. Medical opinion testimony might be that a blood pressure of 180/110 constitutes hypertension or that a subarachnoid hemorrhage may be in the differential diagnosis of someone who complains of the worst headache of their life. In general, only expert witnesses may give opinion testimony.

Subpoenas can also be issued in criminal cases. If the caption of the case lists “People of the State of Illinois” as the plaintiff, then it is a good bet that it’s a criminal case. If you don’t recognize the “defendant” in the case caption, don’t worry. The defendant may not be a patient you treated, but may instead be the person who injured the patient you treated. In criminal cases, an attorney (almost always a prosecutor) will subpoena a physician to provide medical testimony involving a potential crime.  For example, the prosecutor might subpoena you to describe a patient’s injuries or to tell a jury about any statements that the patient made during the treatment. Similarly, if you treated a patient involved in a car accident, you might be called to testify about the patient’s injuries or whether the patient was intoxicated.

Responding To Subpoenas

A subpoena will always list the name, address, and phone number of the entity requesting the witnesses’ testimony. If the scheduled deposition time conflicts with your schedule, the party requesting the deposition usually has some leeway to change the timing. Court testimony is less flexible, but many times prosecutors will allow you to be “on call” where you agree to be available during 1 or 2 days and they agree to call you to come to court rather than forcing you to sit at the trial for several days.

If you receive a subpoena, you may consider contacting the party that issued the subpoena to request copies of relevant documents (i.e. the medical records) for review prior to the deposition. You may also request a copy of the complaint that has been filed to determine the parties and the type of case involved. The entity that issued the subpoena does not have to send you a copy of the complaint, but you may be able to find information about a case online. For example, electronic docket information for cases filed in Cook County is available at www.cookcountyclerkofcourt.org.

While you are required to respond to a subpoena, Illinois Supreme Court Rule 237 states that “Any witness shall respond to any lawful subpoena of which he or she has actual knowledge, if payment of the fee and mileage has been tendered.”
Implicit in this Rule are two points.
First, a witness is technically required to respond to a subpoena if the witness knows about it – even if the witness has not officially received the subpoena.
Second, a witness may not be required to respond to a subpoena unless the witness has received the witness and mileage fee.
In Illinois, under 705 ILCS 35/4.3, the witness fee is $20/day and the mileage fee is $0.20 per mile round trip. These fees apply to all civil cases and to criminal cases where the witness attends a hearing from a foreign county or state.

Under Illinois Supreme Court Rule 203, unless you agree otherwise, a deposition can only be taken in the county in which you live, in which you are employed, or in which you “transact business in person.” You are not required to drive to a far-off place to be deposed. The attorneys need to come to you.

Subpoenas in Federal court are governed by Federal Rule of Civil Procedure 45. Rule 45(b)(1) requires that a party issuing a subpoena requiring personal appearance “tendering the fees for 1 day’s attendance and the mileage allowed by law.” US Code Section 28 U.S.C. §1821 delineates mileage and witness fees for federal court. The witness fees also include tolls, parking fees, and may include a “subsistence fee.”

If you have treated a patient and there is a possibility that you could be named in a lawsuit, be careful about providing testimony. Admissions during your testimony could form the basis for an attorney to add you to the list of defendants in the lawsuit. If you receive a subpoena regarding a patient you treated who suffered a bad outcome, it would be wise to notify your malpractice insurer. By doing so, you protect yourself in the event that a claim is brought against you. In addition, the insurer will provide you with an attorney that will protect your interests should you be required to testify.

If you are a treating physician, Illinois Supreme Court Rule 204(c) states that the party who deposes a nonparty physician in his or her professional capacity must pay a “reasonable fee” to the physician for the time spent testifying at the deposition. In other words, the physician is entitled to receive compensation for being away from his or her practice. “Reasonable fees” for physician testimony in Illinois generally average between $300 and $800 per hour, but may be even higher. I have personally heard of one neurosurgeon who charges fees of $1500/hour for testimony. Physicians with more knowledge and specialization are entitled to higher fees to compensate them for the time away from their practice.

Some attorneys may attempt to circumvent Supreme Court Rule 204(c) by stating that the physician is being called as a “fact witness” only. Don’t be misled. If you are a witness to a motor vehicle accident, you are a fact witness. If you are being asked questions relating to medical diagnosis or treatment, you are being questioned in your “professional capacity” and are entitled to reasonable compensation under Rule 204(c). Make sure that you agree on the compensation you will receive in writing before you provide testimony. I created a physician retainer agreement for my clients that sets forth the terms of a physician’s deposition testimony and fees in advance. Physicians can then request that attorneys sign the agreement prior to scheduling a deposition.

If an attorney persists in demanding your appearance but refusing to provide you with a reasonable fee under the Supreme Court Rules, contact one of the senior partners in the law firm to complain or file a complaint with the Illinois Attorney Registration and Disciplinary Commission.

In summary, if you receive a subpoena, you are required to respond to it. Calling the entity that issued the subpoena to find out more information and to arrange a convenient time for testimony is a good first step, but if there is a possibility you could disclose confidential patient information or that you could be named in the lawsuit, it is probably a good idea to run it by an attorney, first.

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