What is a subpoena?

A subpoena compels a witness to provide a court with information or documents on a specific date, time and location under a penalty for failure.

Are there different types?

Yes, there are two types of subpoena:

• A subpoena duces tecum requires the witness to produce a document/s relevant to a proceeding. The term comes from the Latin duces tecum, meaning “you shall bring with you”. The first page of the subpoena will display a date before or on which you have to provide the documents or evidence. Usually this refers to original clinical records.

• A subpoena ad testificandum demands you to appear in person and give oral testimony for use at a hearing of trial. The term comes from the Latin phrase for “to testify”. The first page of this subpoena will display a date and time on which you have to appear at the court.

What documents must I produce?

With a subpoena duces tecum, you only have to provide the documents or items that have been asked for and listed in the subpoena. The subpoena will tell you who, where and when to deliver the documents to (for example, the relevant attorney or prosecutor who requested the documents).

Who issues a subpoena?

It is issued by the court and is served by the sheriff of the court.

What are they issued for?

A subpoena can be issued in relation to:

• Inquest proceedings (for example, where a practitioner treated a patient who subsequently died and they are called upon to give factual evidence to assist the court in making a finding regarding the cause of death).

• Criminal proceedings (for example, in a case of rape or assault where a practitioner may have been involved in treating the victim).

• Civil proceedings (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.

Can I ignore a subpoena?

When you receive a valid, issued and served subpoena, you are obliged to comply with its provisions, unless the relevant attorney or prosecutor that issued the subpoena has agreed and confirmed in writing that you do not have to comply with it. If you fail to do so, you can run the risk of being held in contempt of court, with an accompanying fine or even a warrant being issued for your arrest.

So, what do I do when I get a subpoena?

1. Check the heading of the document and ensure that it is a subpoena and not a summons or any other legal document.
2. Confirm that the name of the person being subpoenaed is you.
3. Immediately contact the claims department of your professional indemnity provider and supply them with a copy of the subpoena. They will deal with the matter on your behalf and shall advise you of the next steps.

If the subpoena doesn’t describe you or your official capacity correctly, you should refuse the subpoena and inform the sheriff. If the sheriff insists on leaving a copy, contact your professional indemnity provider.

What happens next?

Your professional indemnity provider will check if the subpoena is valid, has been correctly issued and served in good time, and if it is a subpoena duces tecum or ad testificandum. They will enter into communications with the lawyer for the party who issued the subpoena and, in some situations, this can lead to negotiations to ensure that you are inconvenienced as little as possible.

If it is a subpoena duces tecum, they will need all the records in your possession, so they can assess them against the documents demanded in the subpoena before delivering them to the requesting attorney or prosecutor. If it is a subpoena ad testificandum, they will appoint attorneys to help you prepare your testimony and to appear with you at court on the relevant day, if necessary.

Is there a risk to me?

When you receive a subpoena, consider if you have any exposure to a claim or complaint. Is there a chance that providing information to the attorney or prosecutor creates a potential risk to be sued yourself? Your professional indemnity provider will discuss with you the possibility of exposure and will advise accordingly. Although you might just be a witness, they will need to ensure that the situation is appropriately managed to avoid or minimise any risk to you.

Can I object to the issuance of the subpoena?

Your professional indemnity provider may consider the potential objection to the issuance of the subpoena, if it is for an improper purpose. This would include subpoenaing records that have no relevance to the proceedings, subpoenaing persons who would have no evidence to present, or subpoenaing records or testimony that is confidential or privileged.

Aren’t patient documents confidential?

The ethical rules relating to confidentiality must be maintained and therefore you may not provide information relating to the treatment and management of your patient to anyone or any party without your patient’s express consent. Similarly, in court, you may not give evidence regarding the treatment and management details of your patient without their express consent – unless you are ordered to do so.

What happens if the patient withholds consent?

You must advise the presiding officer in court of your obligation of confidentiality and of the lack of patient consent, whereupon the presiding officer may order them to proceed to give the evidence.

Is there a consultation process before trial?

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

Do I get recompensed if I spend time in court?

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 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.

What is the difference between a subpoena and a summons?

A summons is a legal document that initiates a civil case or a criminal investigation against a particular defendant or accused, while a subpoena is issued to a witness.

At EthiQal, we are committed to protecting our doctors and keeping them in practice. Our in-house team of experienced medical and legal professionals will assess your situation and provide you with appropriate assistance and support. We also understand the anxiety that receiving a subpoena can cause and we can provide counselling by qualified experts.

Let us know how we can help you. For more information about this topic and our other medico-legal services, please contact EthiQal today. You can register an incident on www.ethiqal.mobi, send an email to claims@ethiqal.co.za or call our claims and medico-legal support line on 021 007 4527.