Tips for Therapists Dealing with a Subpoena

A while ago, I got my first subpoena, signed by a judge, to testify in court. My first reaction when I opened the envelope was complete panic. As I continued to read, I panicked even more. I was going to be required to spend several days traveling and potentially testifying for someone that I hadn’t seen in years. 

I took a deep breath and immediately logged on to my liability insurance portal (I use CPH and Associates).

Thankfully the process was so easy. My insurance has a spot where you upload all the documents you receive and that was it. A lawyer was assigned to my case and he handled EVERYTHING. He was able to get things to a point where all I had to do was submit minimal information. I hadn’t seen this client in years and had switched EHRs since working with them, but thankfully I had everything securely stored so it was easy to send it off. 

It was certainly a jarring experience and made me glad that I had kept good records.

Here are some tips for handling a subpoena:
Keep Appropriate Notes

The best way to prepare for a subpoena is to always have good notes. Assume everything you write will be read out loud in court. I’m very protective of my clients and therefore my notes have just enough information to be appropriate without being too specific. That doesn’t mean I don’t write anything, it just means I keep things vague. For example, when I used to work for an agency in New York, I frequently had to write “client discussed concerns around medical condition” instead of stating that the client was pregnant. Consult with a lawyer or other expert if you have questions about your notes, but always assume the notes will be read at some point.

Make Sure You Have Liability Insurance

Even if you work for a company, get your own liability insurance. You never know when you’ll need it. I have always kept liability insurance so I was prepared but definitely surprised when I was subpoenaed because I had not had to use my insurance in the 12 years of having it. Don’t assume that just because you don’t work with high-risk clients you won’t need it. 

Store documents securely 

Make sure you know the laws on how long you need to store documents for clients. Each state has different laws on how long to store documents for clients. Our various codes of ethics also have guidelines. Make sure you are familiar with those laws and keep your documents stored either with your EHR, securely on your computer, or in a filing cabinet that is in a securely locked room. 

Talk to a lawyer 

Don’t do anything until you talk to a lawyer, but talk to one right away. They can tell you how to respond to the subpoena and with what information. You never want to give out more than you have to but you have to respond even if it is just saying “I can’t comply.” Not responding to a subpoena can get you into trouble so make sure to be prompt with reaching out to your lawyer and/or liability insurance. Also, make sure that your lawyer is aware of mental health laws and laws pertaining to minors and medical records if relevant. 

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