Receiving a Subpoena

It is not rare to receive a surprise subpoena related to a patient or ex-patient involved in litigation. If the treating psychiatrist anticipates the subpoena and discusses it with the patient and patient’s attorney before the subpoena arrives, the issues below can be discussed at a more leisurely pace than would be the case if the subpoena were unanticipated. This column outlines a general approach for conducting the discussion, but it does not cover all situations and does not constitute legal advice. If the psychiatrist has questions regarding a specific situation, he or she should consult an attorney.

Release of Confidential Material

The psychiatrist should read the subpoena carefully to ascertain if it is just for a deposition or, more likely, also requires the psychiatrist to produce the patient’s records. The mere fact that an attorney subpoenas psychiatric information or testimony does not mean he or she is entitled to it. The psychiatrist needs to be sure that releasing confidential information is legally appropriate. Patient communications to a psychiatrist are privileged (1), although the precise limits on the privilege vary from state to state. Often, a subpoena will come with a release signed by the patient. If it does not, the psychiatrist should call the patient, notify him or her of the subpoena, and ask for a signed release to talk to the patient’s attorney. Assuming a release is granted, in a discussion with the attorney, the psychiatrist can clarify which side issued the subpoena and whether the patient will waive the privilege for testimony and records. Most states have a patient-litigant exception, which holds that if a litigant puts his or her mental state at issue (generally meaning that the patient alleges psychiatric damages beyond normal “pain and suffering”), then no release is required. If the patient does not wish to waive the privilege, the patient’s attorney can determine whether the patient-litigant exception applies or whether the attorney will contest the subpoena.

Discussion With the Patient’s Attorney

The psychiatrist should assume that any conversation with the patient’s attorney is not confidential unless told otherwise. Assuming he or she has a release, the psychiatrist can discuss the relevant details of the case with the patient’s attorney before the deposition. In explaining the effects of harassment to the attorney in this case, the DSM-5 cultural formulation may be helpful. The cultural conceptualization of distress and psychosocial stressors and the cultural factors of vulnerability and resilience are likely to be especially pertinent in this case, because the patient may have reacted to sexually charged behavior in ways quite different from someone raised in American mainstream culture. The psychiatrist’s understanding of the patient’s cultural identity may provide a context to experiences of workplace harassment. Helping the attorney to understand how the patient conceptualizes symptoms of posttraumatic stress disorder would also be helpful. For example, the patient may not consider the symptoms to be due to a mental health problem but may attribute them to a spiritual problem or to a physical health problem.

Fact Witness or Expert Witness?

Fact witnesses can testify only to facts; expert witnesses can also testify to their opinions. The question “Doctor, did you write in the chart that the patient’s prognosis is poor?” asks for a fact; the question “Doctor, what is the patient’s prognosis?” asks for an opinion. In discussion with the patient’s attorney, it is important to clarify whether the psychiatrist is going to be a fact witness or an expert witness. Generally, a psychiatrist must agree to be an expert witness but can be compelled to be a fact witness. Most forensic psychiatrists recommend that treating physicians avoid being experts but, rather, urge that a separate forensic evaluation be done to avoid role conflict problems (2, 3). However, plaintiff attorneys often like to have treating physicians be able to give opinions, because they think the treating physician knows the patient better, may appear to the jury to be less of a hired gun than a forensic expert, and avoids the expense of hiring another professional. In this case, in which cultural issues likely affected the patient’s reaction to what she perceived as sexual harassment, the psychiatrist may have opinions regarding how cultural issues played a significant role in the patient’s reaction that were not documented in the chart but which the attorney would like in evidence, even if there is also a supplemental evaluation by a forensic expert. Experts can charge for their time, but it is highly problematic for a fact witness to charge unless the treatment contract developed at the outset of treatment so specifies (which might be the case when beginning with a patient such as this one where litigation appears likely).

Conclusions

Psychiatrists are often quite anxious when they are required to participate in depositions regarding their patients. It may be helpful to remember that as a treating physician in this case, the focus will be on the patient and her reactions, not the quality of the psychiatrist’s treatment. How to respond to questions in a deposition is beyond the scope of this column, but interested readers can consult literature aimed at the general psychiatrist for addressing those issues (4).