An understanding of subpoenas and court proceedings reveals that you actually have recourse and many options to the demands placed on you by a surprise subpoena.

First, you should be aware that a deposition is an elective legal proceeding that can be scheduled at any time and place convenient for the parties involved. A good attorney would be considerate of your schedule and call you in advance to obtain convenient times for your deposition. This approach is less likely to cause the physician to be resentful, combative, or otherwise taint proceedings and possible outcomes of the lawsuit. Lawyers who serve you with a subpoena without the courtesy of contacting you first are hoping that you are so ignorant about legal matters that you will simply show up at the time and place that is convenient for them and will be so scared of possible penalties that you will just answer all questions posed to the best of your abilities.

Are there really any penalties if you don’t comply with the subpoena? Only if you don’t respond! If you do nothing and don’t appear, the attorney will report you to the Superior Court judge who will then issue sanctions for a lack of response. Instead, simply notify the attorney that you have other commitments that preclude your appearance. Don’t make the phone call yourself; have your office staff contact the attorney’s staff so that you have witnesses in case the attorney claims you did not respond to the subpoena. You don’t have to provide an explanation to the attorney, only to the judge if the attorney unwisely decides to report you. If the attorney reports you, a typical response from the judge would be "you subpoenaed the doctor for a deposition with no notice and then learned of a schedule conflict? I presume you rescheduled the deposition for a time convenient to the doctor, correct?" If you are reported at this point, simply provide a reasonable explanation to the judge, who would then reprimand the attorney for abusing subpoena powers.

When rescheduling the deposition, give the attorney a few dates and times that are convenient for you. Choosing the end of the day, say 4:30, often results in a more expeditious deposition because the attorney usually wants to leave to have dinner soon thereafter. You should insist on a location that is convenient for you, such as your office. If you are subpoenaed to appear in another county, charge for your travel time. You cannot be forced to travel more than 100 miles.

When rescheduling matters, you should also provide your fee schedule for medical-legal matters in writing and clarify that you expect full payment in advance of the deposition. A two-hour minimum fee is customary for depositions. You can decide whatever hourly rate you choose. My personal feeling is that if you have made a difference in the patient’s quality of life, your hourly rate should be higher than the attorney’s. At any rate, you should ask for at least as much as you would earn if you spent that time in your office seeing patients. If the attorney asks you to discount the rate so that the poor patient can receive a higher award, ask if the attorney’s fee has been discounted.

The attorney can use subpoena power to force treating physicians to testify and pay only a nominal fee of $50. Most attorneys will not take this route for fear of antagonizing you and thereby tainting your testimony. Experienced attorneys prefer to comply with reasonable fee requests made by the physician knowing that this will result in a more cooperative witness.

I was recently subpoenaed without the courtesy of a phone call or cover letter and instructed to appear midmorning in a hospital conference room a week later. After the attorneys rescheduled the meeting to an evening convenient for me, in my office, and paid my customary fees, the deposition went uneventfully. Afterwards I informed the responsible attorney that I expect to be contacted prior to being served with a subpoena. She initially tried to blame the other attorney, then her secretary, and then said she doesn’t call in advance because doctors won’t respond to multiple phone calls requesting a meeting. I reminded her that no judge would sanction a physician for failing to appear if there was no advance notice of the deposition date. Her response: Doctors ignore her phone calls but won’t ignore subpoenas, even if they aren’t valid. She knew that, if needed, she could get a valid subpoena by making a good-faith effort to schedule the deposition, but that simply required more effort on her part. Message to doctors: When an attorney calls you for a deposition, you should make a good-faith effort to schedule something at your convenience, otherwise you will be served with a valid subpoena and forced to appear at a time that’s likely to be inconvenient for you.

With this knowledge, you should be able to satisfy the needs of your patients and their attorneys without undue duress. A good attorney would make these details clear to you, but many attorneys will prey on your ignorance of the legal process to make matters convenient for them at your expense. You can learn more about important legal and legislative matters by attending the San Mateo County Medical Association functions.