Lewis Kappes

We regularly get questions from our health care clients regarding subpoenas calling for the attendance of a provider for a deposition or court hearing. Here is some basic information to help guide your organization and the witness.

The general rule is that it is best to comply with the subpoena. In Indiana, attorneys can issue subpoenas for a witness to testify at a hearing or deposition in a state court or agency proceeding. The subpoena can request that the chart for the patient be brought to the hearing. However, it is possible for your organization’s attorney to object (Motion to Quash) in unusual circumstances (e.g. the subpoena asks for documents related to the organization and not the patient). It is a good idea to have the organization’s attorney review the subpoena to be sure it is properly issued and does not seek objectionable information.

If the time and place is extremely inconvenient or the provider simply will not be available, it is best to contact the attorney who issued the subpoena. Sometimes the time can be changed; sometimes the witness can appear at a deposition instead of a court hearing; sometimes simply providing the documents is sufficient; and other agreements can be worked out among the attorneys. Also, the attorney for the patient, if not the attorney issuing the subpoena, can object for a variety of different reasons.

Regarding fees, if the witness is subpoenaed from outside the county where the testimony is to be given, there is a small fee required. A provider can charge for the time and testimony as well. This is a matter of company policy, including who is permitted to receive and keep this payment.

Following are some basic instructions for a provider who is going to be a witness:

listen to the questions and just answer them without adding more than is necessary to respond.
be polite and professional no matter how obnoxious the questioner (cross-examiner) might be.
don’t offer opinions that are beyond your expertise (e.g. the child would be better off in a foster home; this is not your decision). You can testify as to what was said at appointments, what treatment you recommended, the diagnosis and the basis for the diagnosis, etc.
expect to be questioned about your educational background, work experience, licenses and certifications, and other background.
stick with what is well documented in the chart.
have the chart available so you can refer to it. Bring a copy as the chart may end up being admitted into evidence at the deposition or hearing.
if you get a crazy question or a question you do not understand, ask to have it rephrased.
if an attorney raises an objection to the question you are asked, wait until the judge makes a ruling as to whether or not you should answer. If the objection is made at a deposition, wait until the attorneys discuss it, and if the attorney for the patient is asking you not to respond, then do not respond until you hear from the judge in the case or the organization attorney tells you it is okay to respond. Sometimes depositions get interrupted because of an unresolved objection.

For more information or assistance, please contact Lewis Kappes attorney, Thomas R. Ruge, at 317.639.1210.

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