You've received a subpoena... What next?

Katherine Greig, MPS Panel Lawyer and Director at MacRobert Attorneys, offers some practical advice on what to do if you receive a subpoena

Medical practitioners are occasionally called upon to provide factual evidence in court relating to their involvement in the treatment and management of one of their patients. Generally speaking, this is sought by means of a subpoena issued by the court concerned and served on the witness by the Sheriff of the Court. 

A subpoena can be issued out of the following:

• An Inquest Court (for example, where a practitioner treated a patient who subsequently died and is called upon to give factual evidence to assist the court in making a finding regarding the cause of death)
• The Criminal Court (for example, in a case of rape or assault where a practitioner may have been involved in treating the victim)
• The Civil Court (for example, where a practitioner may have treated a patient after a motor vehicle accident and the injury is the basis of a subsequent claim for damages)
• Professional conduct hearings before the HPCSA, CCMA hearings, Children’s Court matters, and Family Court matters.

Consider the following scenario. Dr A, a specialist neurosurgeon, takes service of a subpoena issued out of the High Court requiring him to present on a particular date to give evidence for the plaintiff in a civil trial. The plaintiff is Mrs B, who sought treatment from Dr A for her painful back following failed back surgery performed previously by Dr C. She has instituted a civil action for damages against Dr C, and needs Dr A to testify as to what he observed when he assessed and treated her to establish proof of what damages she suffered.

In this case, Dr A is being called to give a factual account of his involvement in the patient’s treatment and management, as well as in regard to his personal observations of the patient’s condition. He is not an expert witness and will therefore not be paid “expert fees” by the party calling him. He will only be required to speak to the facts of his involvement, and not to provide his opinions regarding the treatment and management of the patient by Dr C.

The first step: contact MPS

When a witness receives a valid, issued and served subpoena, they are obliged to comply with its provisions. If they fail to do so, they can run the risk of being held in contempt of court, with an accompanying fine or even a warrant being issued for their arrest.

If you receive a subpoena, contact MPS as soon as possible, as they may be able to provide assistance assessing whether the subpoena is valid, has been correctly issued and served in good time, and then enter into communications with the lawyer for the party who issued the summons. In some situations, this can lead to negotiations to ensure that the practitioner is inconvenienced as little as possible. For instance, it might be arranged that the practitioner is only required to ensure they are available for specific days rather than the whole trial.

Consent

The practitioner may not provide information relating to the treatment and management of their patient to anyone or any party without the patient’s express consent.

Similarly, in court, a practitioner may not give evidence regarding the treatment and management details of their patient without express consent – unless they are ordered to do so. This means that when consent is withheld, the practitioner must advise the presiding officer in court of their obligation of confidentiality and of the lack of patient consent, whereupon the presiding officer may order them to proceed to give the evidence.

Consulting with parties

If a patient subpoenas a practitioner to give evidence as a factual witness, the practitioner is allowed – but not obliged – to consult with him/her in preparation for the trial. Practitioners should therefore be wary of being misled into thinking that they must consult with the party subpoenaing him before and/or during the trial.

If the practitioner refuses to liaise with the party who subpoenaed them, it may discourage the party from actually calling the practitioner to give evidence in court as they are unlikely to risk unfavourable evidence being elicited.

Medical records

A practitioner may receive a subpoena “duces tecum”, which means that they are not only required to present themselves at court to give evidence, but also bring certain specifically identified documents when they testify. Usually this refers to original clinical records.

If the practitioner does not have the patient’s consent to disclose the records, then they should only do so under protest when ordered to by the presiding officer.

In some civil proceedings before the High Court, a subpoena may also specify that the witness hand the requested documents to the Registrar of the Court “as soon as possible”. Rather than lodging the original documents in the court file, the practitioner may choose to enter into an agreement with the party subpoenaing him to provide copies of the original documents directly to each of the parties, with the originals to be taken to the trial if necessary. In this situation, it is always advisable to obtain the patient’s consent first (where possible).

Should consent to provide the documents remain withheld, then professional opinions are divided with regards to whether the practitioner would nevertheless be obliged to hand the records to the Registrar before the trial date. MPS will be able to advise you on the right option in your particular case.

Reimbursements

Being called upon to give evidence invariably means that a practitioner will have to spend time (and sometimes a considerable amount) away from their practice, and they may also be required to travel.

Unfortunately, recompense for practitioners doing civic duty, as provided for in the relevant legislation and the Rules of Court, is generally minimal. Reimbursements can be sought for reasonable travel expenses, accommodation and meal costs, as well as for lost income; however, it is capped at a modest nominal amount per day. Whatever the reason for a subpoena being issued, the onus on you remains the same: to provide the court with a factual account, free from bias or embellishment. If you have any questions about your role and responsibilities, contact MPS to talk through your concerns.