Friday, August 29, 2008

When Lawyers Call

Clink is on "lockdown" whatever that means. It can't be good and it seems to mean no access to the blog, so she asked me to post this for her. What are friends for, if not posting for you when you're indisposed? Judging by the length of this post, it seems ClinkShrink may have been locked down for some time now. Hoping she's free soon.


When Lawyers Call
--by ClinkShrink

One of the advantages of being a forensic psychiatrist is that you can
interact with lawyers without breaking into a panic. Occasionally I get
calls from colleagues who have been contacted by a lawyer about
something, and I can almost hear them sweating over the phone. So, I
figured it might be helpful to write a blog post about what to do when
an attorney calls.

First of all:

DON'T PANIC

I can't say this enough. The first automatic thought you will have is
that you have been drawn into something that will cost you a lot of
time, money and emotional distress. That's almost never the case.

The most common thing that happens is that you might get a subpoena.
This is usually sent by U.S. mail, but occasionally is hand-delivered
by a process server. If you don't read Latin (all great legal documents
are written in Latin) you won't know that there are two types of
subpoenas: a "subpoena duces tecum" and a "subpoena ad testificatum". A
duces tecum means that the lawyer just wants records from you. The
other type means that the lawyer actually wants you to appear for a
hearing to give testimony. Regardless, subpoenas will pretty much
always involve a patient you are treating and you may already know if
your patient is involved in some type of litigation. If you have a high
volume practice or a practice with a limited amount of treatment
contact---say, an emergency room or consult liaison service---you may
not remember the case. If a review of the patient's chart doesn't
suggest the reason for the subpoena you will need to contact the lawyer
to find out why you were served.

If you work for a hospital you're in luck---the hospital attorney
should be informed immediately about all subpoenas, and you can ask
them for advice about what to do next. The hospital attorney can call
the serving lawyer and tell you what the 'official' response should be.
The best outcome is that your lawyer will successfully file a "motion
to quash". This means that he or she tells the court that it's not
necessary to subpoena you because either: 1) the information you have
is completely irrelevant to the legal issue at hand, or 2) the
information can be obtained through the records alone, you have nothing
to add beyond that, and your actual testimony is unnecessary. In other
words, he makes the subpoena go away. Your life goes on as usual.

If you don't have a lawyer, or if you don't want to pay a lawyer how
much it will cost to do all this, you will have to call the serving
attorney yourself. The first rule to remember is: collect information,
don't give information. This is the information you need to collect: 1)
who is your client?, 2) what is the legal issue?, 3) what information
do you want from me about this legal issue? You shouldn't offer any
information at all until you have these three basic questions answered.
Specifically, don't say anything about a patient's diagnosis,
treatment, treatment compliance or prognosis. The lawyer calling you
may not be acting on behalf of your patient and there are a myriad of
reasons why you might get contacted: a contested custody case, a
disability or workmen's compensation claim, a personal injury case or
even a criminal proceeding. You could unintentionally harm your patient
by giving information to an opposing lawyer.

You're probably wondering why I didn't specifically say you should
notify your patient first. I list that as the second thing to do
because most often the person contacting you has been retained by your
patient and he or she already knows about it (you might need to have a
discussion at your next session about why they didn't warn you this was
coming!). If this isn't the case, then you need to do some preliminary
data collection in order to tell the patient what's going on. Thus,
patient notification comes second in line to talk to the serving
attorney.

If the serving attorney is working in opposition to your patient, then
you need to consult with your patient about how to respond. If he or
she wants you to participate in the proceedings or to provide records
then all is right with the world. You might want to prepare them for
what you will have to say, but that's about it.

Things get messy if the patient doesn't want you involved. At this
point the number of possible hypothetical situations make it impossible
for me to cover all of them, but generally this is when you need to get
a lawyer. In certain situations the patient may not have the right to
claim (or by statute will automatically waive) privilege. You will have
to be involved regardless of the patient's wishes. You will need to
address this with the patient and consider how this will affect your
therapeutic relationship.

Finally, there is one thing I strongly advise you not to do:

DON'T IGNORE A SUBPOENA

It will not go away. Failing to respond could put you at risk for
monetary penalties. In a worse case scenario, a judge could sent out a
"body attachment" on you. In other words, sheriffs show up in your
office to physically take you to court. I've never heard of this
actually happening to a doctor, but I don't want any of our readers to
be the first one.

OK, I think this post just made up for weeks of ClinkShrink inactivity.