Ken Baker is a pharmacist, lawyer, and former general counsel and senior vice president of Pharmacists Mutual Insurance Company. Ken Baker advises clients in pharmacy law and regulation, risk management, insurance and pharmacy quality programs, and reduction of medical errors. Ken Baker is of counsel and a pharmacist consultant with the Phoenix law firm of Renaud Cook Drury Mesaros, PA. He is licensed to practice law in Indiana.
 
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Pharmacy Consulting Notes

"I have a subpoena for prescription records. What do I do?"

The local sheriff’s deputy walks into your pharmacy and presents you with an official looking document from a court. The document is entitled “Subpoena Duces Tecum” or just “Subpoena.” In simple terms, it orders the pharmacy to produce the items specified in the document to a trial or deposition in a case that has been filed in the issuing court. Usually it also requires the attendance of a person familiar with the records who will be asked to testify as to the authenticity of the records subpoenaed.

Typically, the items sought from a pharmacy are the prescription records of one of your patients, who may, or may not, be one of the parties to the lawsuit. What is a subpoena and what does the pharmacist do when he or she is served?

While the rules may differ from state to state, generally, a subpoena is an order prepared by an attorney for one of the parties to the suit and signed by the clerk of the issuing court. It has the effect of a court order and cannot be ignored.

The law governing the issuance and enforcement of subpoenas differs depending on the state or court where the underlying action was filed and is being tried. The rules in Federal Courts (see generally Federal Rules of Civil Procedure, Rule 45) may differ from those in the various states, but there are a few things you should know regarding all subpoenas. This type subpoena requires the person served or a person who is designated as “keeper of the records” to appear at a place on the date noted in the subpoena and bring the requested records.

While the subpoena orders the pharmacy to bring the records, you are not yet authorized to hand them over to anyone. The fact that you have been served with a subpoena does not excuse you or the pharmacy from the HIPAA rules or the rules of confidentiality in your state. You still need a release signed by your patient or an order signed by the judge to actually hand them over or tell anyone what the records contain. Note that a subpoena is usually signed by the Clerk of the Court, not by the judge.

Often the pharmacy will received a call from the attorney offering to allow the pharmacist to avoid appearing at the deposition or trial so long as the pharmacist provides the patient’s records. Typically this attorney represents someone other than the patient whose records are requested. For a busy pharmacist, this offer is tempting. Without a release, however, you can not automatically agree to send the records.

This is basically what happened in the case of Washburn v. Rite Aid Corp, 695 A.2d 495 (R.I. 1997). The Washburns were in the process of a contested divorce when Mr. Washburn's attorney subpoenaed Mrs. Washburn's prescription records from Rite Aid. Rather than bring the requested records to the deposition as stated in the subpoena, the pharmacy mailed copies of the records directly to Mr. Washburn's attorney. The Court in the Rite Aid case concluded that this action by the pharmacy was an unauthorized release of confidential records and the Court said that Mrs. Washburn could sue the pharmacy for damages.

So what do you do? Try to get a release signed by the patient whose records you are ordered to produce. The pharmacy can demand of the lawyer requesting the records that he or she produce a release signed by the patient. The pharmacy owner or someone of authority within the pharmacy organization must be notified. The pharmacy may have a written policy covering this situation. Unless there is a clear directive as to what to do when served with a subpoena, someone must check with the pharmacy’s lawyer. The mere receipt of a subpoena does not protect you from a lawsuit for unauthorized disclosure of confidential records or from a visit by the “HIPAA police.”

 
 

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