Pharmacy Consulting Notes
"I have a subpoena for prescription records. What do I do?"
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?
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
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.
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.
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.
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.
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.”