Four Requests in One Week: Subpoena, Employer, Family, and a Shredder
Dana, 44, was your patient 15 months ago after a rotator cuff repair and was discharged at four months. This week you receive four requests. (1) A subpoena duces tecum from the attorney for the other driver in Dana's auto-accident case, demanding 'the complete chart, including any notes about her personal life, alcohol, and HIV status.' (2) A fax from Dana's employer, a distribution warehouse, with Dana's signed one-line 'general release,' asking whether she can lift 50 pounds and whether she ever disclosed drug use. (3) A phone call from Dana's sister, who says Dana asked her to find out the diagnosis. (4) Dana herself, asking that her record be sent to a new clinic. Separately, the office manager mentions the practice shreds charts after four years to save space; one folder in this month's shred pile belongs to a patient who filed a Board complaint three weeks ago.
1. How do you respond to the subpoena? What must be produced and what must be withheld?
Read the worked answer
A subpoena is not a patient authorization. Work through it in order.
- Verify that it is valid and directed to the right entity and custodian (court, case caption, return date) and calendar the deadline.
- Notify Dana (and her attorney of record, if any) so she can object or seek a protective order, unless the subpoena or a court order bars notice.
- Produce the complete treatment record that is properly requested, with a custodian's certification or business-records affidavit and the office's records fee schedule.
- Redact or withhold what is protected: information about other people, and specifically protected categories. Georgia treats HIV/AIDS information as confidential information with its own authorization requirements, and substance-use treatment records in a federally assisted program are governed by 42 CFR Part 2 - neither goes out on a bare subpoena. If you are unsure, object in writing and ask the court for a protective order; do not simply ignore the subpoena.
- Never alter the chart to remove 'personal' content.
Document every step: what was requested, what was produced, what was withheld, and why.
2. What may you release to the employer, and what should you refuse?
Read the worked answer
The one-line release is not a valid authorization. A compliant authorization identifies the patient, the specific information, the recipient, the purpose, an expiration, and the patient's signature. 'General release' plus 'can she lift 50 pounds' is not specific enough to send a chart.
What you may provide: with a valid authorization, objective work-related functional information - lifting and carrying capacity, overhead reach, tolerance for a shift - and only the minimum necessary to answer the question asked.
What you should refuse: the drug-use question. That is not a physical therapy determination, it comes from a different record, and it likely has a different legal basis. Put the refusal in writing: outside the scope of this request and outside this practice's records.
Workers' compensation caveat: if this is a WC claim rather than a fitness-for-duty request, the disclosure rules for that claim may apply, and you should check with the carrier and the statute before releasing anything.
A 'fitness for duty' opinion should rest on objective testing or a documented functional capacity evaluation, state the methods and the limits, and never be a blanket 'cleared.'
3. How do you answer the sister, and what is wrong with the four-year shredding policy - especially for the chart tied to the Board complaint?
Read the worked answer
Sister: No. Being family creates no right of access. You may take a message and, with Dana's written authorization, speak with her. Otherwise you cannot confirm or deny that Dana is a patient.
The purge policy is a problem twice over. First, Board rules set a minimum retention period for patient records, and a blanket four-year schedule may fall short of it. Second, any schedule must account for records of minors (kept until majority plus the retention period), records tied to open litigation, payer audits, and Board complaints - all of which must be preserved until the matter is fully resolved. Shredding a chart three weeks after a complaint is filed invites an obstruction or spoliation allegation that is far worse than the storage cost.
Fix it: suspend the purge; pull every folder with an open complaint, claim, or litigation hold; adopt a written retention and destruction policy with a log (what was destroyed, when, by whom, method); use cross-cut shredding or certified destruction for paper and documented, verifiable destruction for electronic records.