Open Bar: Understanding and Responding to a Malpractice Deposition Subpoena as a Non-Party Witness

Question: How should I respond to a service of a subpoena for a non-party deposition in a malpractice action?

Response: Suddenly being served with a subpoena in a malpractice action can be a new and stressful situation. Ignoring or failing to comply with the subpoena can lead to serious consequences, including sanctions or being held in contempt of court. Therefore, it is common that a doctor’s initial reaction is to respond quickly, contact the subpoenaing attorney and discuss treatment and/or explain their case and/or provide dates for appearance, especially since the subpoena will state in bold print:

Upon receipt, please contact

(subpoenaing attorney) at

(telephone number) to confirm

It is critical that you avoid this temptation. Further, do NOT speak to any of the physicians named as defendants in the caption. Also, never review the medical record or make any self-serving additions to the record, after receipt of the subpoena.

Your first step is to contact MLMIC. MLMIC will assign an attorney to represent your interests as there could be potential legal and ethical consequences to consider. Without proper guidance, you could accidentally disclose privileged information or expose yourself to legal problems. The subpoena itself is a form that may appear official, but it is one that is office generated and signed by an attorney. It is not customarily reviewed by a judge prior to service. Therefore, it may or may not be valid. Your attorney is the one that will determine the validity of the subpoena and determine if there are any valid legal grounds to challenge it. If the conclusion is that you need to comply with the subpoena, your attorney can negotiate the date or time of the deposition, providing time for thorough preparation.

As a non-party, you are not being sued, and you are not formally involved in the underlying lawsuit. However, your testimony is being sought because you most likely treated the plaintiff in the lawsuit and/or you can offer information that is relevant to the underlying lawsuit. Unfortunately, being a non-party doesn’t mean there is no risk. It is always a possibility that your treatment is being criticized and/or you could have some potential liability or legal exposure. Therefore, it is always best to err on the side of caution and appear with an attorney. You will have comprehensive preparation of the case and your treatment with your attorney prior to your appearance for the deposition. You will review the relevant medical records, discuss the potential questions and how to answer them effectively. Your attorney will clarify the rules of the deposition, ensure that you understand the boundaries of what you can and cannot be asked as a non-party witness, discuss the process of the deposition, and discuss potential objections that might take place.

Being served with a subpoena is a matter that requires representation by legal counsel to ensure the best protection possible. Having legal counsel safeguards that the deposition is maintained within the appropriate parameters of what is required and ensures that you are properly prepared and represented. MLMIC is here to assist and prepare you.

MLMIC policyholders can reach out to our healthcare attorneys for questions about how to respond to a non-party subpoena or any other healthcare law inquiries by calling (877) 426-9555 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (877) 426-9555 or by emailing hotline@tmglawny.com.

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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.