Subject: Subpoena, Deposition and Testimony Guidelines
Effective Date: August 2006
Revision Dates: July 2007, November 2011, August 2016
For subpoenas related to patient care, UW School of Dentistry faculty, residents, students & employees should contact Health Sciences Risk Management in the Health Sciences Center – (206) 598-6303; HMC – (206)744-9574; UWMC – (206) 598-6303. Health Sciences Risk Management serves as a liaison to the Attorney General’s Office for this purpose, so this will fulfill one’s obligation, as outlined in the University of Washington Handbook, to notify the Attorney General’s Office upon receiving legal process. Questions about non-patient care-related subpoenas (or other legal process) should be directed to the Assistant Dean of Finance and Administration.
UW School of Dentistry policy directs faculty, residents, students & employees to comply with their legal obligations to provide fact witness testimony related to subpoenas and similar court process. Under the law, the individual named in the subpoena has primary responsibility for ensuring that a response to the subpoena takes place; failure to do so can result in contempt citations and other sanctions from the court against that individual. The guidelines below are intended to assist faculty, residents, students & employees with this duty, while minimizing disruption to patient care.
The following guidelines provide information and advice on what to do and expect if you receive a subpoena or request to testify as a witness in a lawsuit, administrative, or criminal proceeding, and/or a subpoena to produce documents relating to University business. Commonly asked questions and answers are summarized in Appendix A.
If the questions and answers below do not provide enough information, faculty, residents, students & employees should first notify their department Chair or the Dean’s Office. The faculty, resident, student or employee and their manager together may then contact the University of Washington’s Health Sciences Risk Management Department for further advice regarding patient care-related subpoena issues. Dental faculty may wish to contact their department Chair or other supervisory dentist, and/or seek further advice from Health Sciences Risk Management, or their own personal attorney. Health Sciences Risk Management will facilitate any necessary involvement of the Attorney General’s Office.
Appendix A, Questions & Answers: Subpoena, Deposition and Testimony Guidelines
Appendix B, Sample Trial Subpoenas
Dean of UW SOD:
Joel Berg, Dean of the UW School of Dentistry
UWSOD Policy Regarding Expert Witness Testimony – Frequently Asked Questions
What is the meaning of “subpoena” and “subpoena duces tecum?”
A subpoena is a legal document requiring a specific person to appear and testify as a witness in court or at a deposition. A subpoena duces tecum (SDT) orders the person subpoenaed to produce books, documents, or other records under his/her control. It may also require the person to accompany the records and testify as a witness at a specified time and place. It is served upon the custodian of the required records, or upon an individual person named in the subpoena.
A subpoena or SDT is issued by an officer of the court or an attorney of record in the case, and is served on a named individual, department or organization.
What should I do if I receive a subpoena or a subpoena duces tecum?
The answer to this question depends on the following two factors:
- Whether the University of Washington, including any School of Dentistry Clinic, Harborview and/or UW Medical Center (UW Medicine), is directly or potentially involved in the case.
- The type of information requested.
How can I tell if the University of Washington is involved in the case?
- Is the UW a party to the case? If the UW is a party, this means that the UW will be listed in the caption (box in the upper left hand corner of the document) of the subpoena or subpoena duces tecum (the caption may say University of Washington, UW School of Dentistry, Harborview Medical Center, University of Washington Medical Center, or may list a clinic or affiliate name and/or an individual University of Washington School of Dentistry or School of Medicine provider name.)
- What should I do if UW is a party to the case? Immediately contact the University of Washington Health Science Risk Management Department. (Health Sciences Center – (206) 598-6303; HMC – (206)744-9574; UWMC – (206).598.6303).If the subpoena is for an ongoing case that you already are involved in, direct any questions about depositions to the UW Office of Risk Management at (206) 543-3657. Ask to speak with the liability claims manager.
What should I do if UW is not a party to the case, but I believe that the case involves a potential quality of care issue for UW School of Dentistry or any Health Sciences school? Immediately contact the University of Washington Health Science Risk Management Department. (Health Sciences Center – (206) 598-6303)
What should I do if UW is not a party to the case, and I do not think that the case involves a potential quality of care issue for UW School of Dentistry or UW Health Sciences School? This depends on the type of information being requested.
- What if the subpoena is requesting medical records? All subpoenas requesting release of patient-related records should be promptly sent to the Patient Records Office for processing. (B 307, Box 357131, Attention: Records Custodian). The treating faculty member will be notified, but the record preparation and release must be done by the record’s custodian to help ensure that the release is legally appropriate and that the medical record is complete. Do NOT attempt to gather or provide the medical records yourself.
- What if I believe that release of my patient’s dental records to someone other than my patient) will be harmful to my patient? Contact Health Science Risk Management for further advice. (206) 598-6303.
- What if the subpoena also requests my testimony? If this is the case, the subpoena will usually ask you to appear to provide testimony, and the medical records request will take the form of a subpoena duces tecum asking to you bring records with you. A subpoena asking you to appear only as a “custodian” of the records usually will be handled entirely by Patient Records (they will notify you if your presence is required). You should call 543-5005 to coordinate transferring the subpoena to them and to answer any questions they may have about providing your patient’s records. If the subpoena appears to be requesting your testimony as a health care provider for the patient, you should coordinate with the Record’s Office to make sure that the appropriate steps have been taken to permit release of the patient’s health care information (this applies to any records that have been requested, as well as to your actual testimony about your care of the patient). You would then follow the steps listed below under “fact” witness testimony.
- What if the subpoena requests release of research records or data?Contact the manager of the UW Human Subjects Division, at 543-0098, for review and advice.
- What if the subpoena requests something other than patient care information? You should contact the Assistant Dean of Finance and Administration at (206) 543-5494, School of Dentistry’s Dean’s Office if the subpoena does not appear to be related to clinical patient care. Patient care-related subpoenas generally involve a University of Washington School of Dentistry patient as a plaintiff, defendant, or victim (criminal case). Examples of subpoenas that should be initially referred to the Director of Compliance & Billing, School of Dentistry include, but are not limited to:
- Subpoena from the Department of Justice or the Office of Inspector General;
- A case that appears to involve a contract dispute, financial issues, patent issue or copyright issues.
- It looks like I am being asked to testify as a healthcare provider. What should I do?This depends upon whether you will be testifying as a “fact” witness or as an “expert” witness.
a) What is the difference between a “fact” witness and an “expert witness”?
In a typical litigation setting, a “fact” witness was involved in the events at issue in the case, and testifies solely about his/her personal knowledge of those events (e.g., eyewitness testimony). Most fact testimony does not involve opinions of any kind. “Expert” witnesses, on the other hand, typically have not been personally involved in the events at issue in the case, but have reviewed them from a third-party perspective. These witnesses offer opinions about the issues in the case that are relevant to their areas of expertise.
Health care providers sometimes testify in the expert role described above; that is, they will review cases in which they were not personally involved and offer opinions in their areas of expertise. Even when health care providers who are involved in cases in the role of treating provider are asked to testify as “fact” witnesses, however, they actually function in a type of “hybrid” role, because expert opinions may be elicited if formulated as part of the basis of care. There are limits to the scope of the opinions that are properly asked of a health care “fact” witness, as described below.
Slightly different concepts apply in worker’s compensation (L& I) cases; see below.
(1) “Fact” Witness
A treating provider can be compelled to testify about the “facts” of his or her care of the patient. (See above for information about appropriate release of dental records.)
- Example: X., when you examined the patient in January 2002, what was his level of numbness?
- In connection with that testimony, the provider may appropriately be asked questions about his/her qualifications, including education, training, publications, etc. The provider may also appropriately be asked questions about medical opinions that he/she formed in connection with care of the patient. As a “fact” witness, the provider may appropriately decline to formulate a present opinion in the case. You do not need to formulate an opinion about matters that go beyond your involvement in providing care to the patient. Only testify on matters within the scope of knowledge of your practice or medical specialty.
- “Fact” opinion example (witness may be required to answer): X, based upon your examination of the patient in January 2002, what did you think was causing the patient’s pain?
- “Expert” opinion example (witness may decline to offer): X, on a more likely than not basis, do you believe that my client’s current problem was caused by the November 2001 accident?
(2) “Expert Witness”
A treating provider may also serve as an expert witness. As noted above, expert witnesses generally do not have personal knowledge related to the patient (aside from record review). If you have been subpoenaed regarding giving testimony about your own patient, you need not agree to provide “expert testimony” (see example above).
- You cannot be required to testify in an “expert” witness capacity unless you have previously agreed to do so.
(3) Worker’s Compensation (L & I) cases
If you are the provider for an injured worker (or someone with an occupational illness) in the state of Washington, you may be asked by the Department of Labor & Industries or the self-insured employer to provide information about your care of the patient related to the injury or illness. You also may be asked to provide certain specific types of expert opinion. Typically, these involve questions about “rating” the patient’s level and degree of disability under a state regulations scheme. Most of this activity takes place at the “claims management” level (i.e., through correspondence with the claims manager for the patient’s L & I claim), and does not involve attorneys or legal process. You may decline to offer a rating opinion, but you will need to provide requested information about your care of the patient (see §G below). If actual dental records are requested, follow the Record’s Office procedures described above.
You also may become involved in a claimant’s or employer’s “appeal” and you may be subpoenaed for testimony in an administrative hearing before the Board of Industrial Insurance Appeals. In most cases, you do not need to appear “live” at the hearing; it is very common for the testimony of health care providers in these cases to be taken by “perpetuation” deposition.
Can I agree to be an expert witness?
Yes. (See below for witness compensation information).
Can I receive compensation for fact or expert witness testimony?
If you will be receiving any compensation for your testimony (beyond “statutory” fees; see below), you must follow the UW policies for outside consulting (see University of Washington Operations Manual, section D 47.3; for more information, see [link]). Members of UWD must also review and follow the subpoena and testimony policies developed by these organizations, as well as UWD Policy Regarding Expert Witness Testimony, the xxx – need to find xxx). Billing staff will assist in determining the appropriate charges for staff testimony as an expert witness.
Briefly, compensation for testimony involving UWD patients must be handled through UWD billing procedures. Compensation for testimony involving “outside” patients can be handled through outside consulting procedures.
a. Special information regarding compensation as a fact witness
Payment for fact witness testimony is set by court rules and involves a minimal fee. However, many attorneys are willing to pay healthcare providers more than the mandatory fees required by the courts. If you wish to receive compensation for fact witness testimony beyond the “statutory” fees, your request for compensation must be discussed with the attorney requesting the testimony before the deposition or testimony. Questions about appropriate billing procedures should be referred to the UWD billing manager.
b. If I am a non-billing employee, will I be paid my salary to testify if called, or would I have to use benefit time?
In most cases, your testimony would be considered part of the scope of your duties. You should discuss time and compensation issues with your manager.
What if the subpoena comes from a court outside of King County?
Subpoenas for testimony outside of King County are covered by special rules, including any witness fees to be paid in advance. These issues usually can be resolved through contact with the prosecutor’s office or other issuing attorney. Contact Health Sciences Risk Management (206)598-6303), which will refer you to the Attorney General’s Office if needed.
What if the subpoena arrives by mail or on very short notice before the trial or deposition?
Depending on the level of court where the case is filed, service by mail may be technically improper. You also may receive a subpoena that technically does not provide the required “reasonable notice.” However, that does not mean that these subpoenas should be ignored. These issues usually can be resolved through contact with the prosecutor’s office or other issuing attorney. Contact Health Sciences Risk Management (206.598.6303), which will refer you to the Attorney General’s Office if needed.
What if I am not available at the time I have been asked to testify?
Sometimes witnesses are subpoenaed to give deposition or trial testimony at a time that is inconvenient or when the witness is unavailable. When this occurs, contact the attorney and explain the situation and request an alternative time and date to provide testimony. An attorney is not obligated to change the subpoena to accommodate an individual’s request, but most are usually willing to schedule the deposition at a mutually agreeable time. Witnesses who are subpoenaed to give testimony at trial are frequently summoned to appear at the court on the first day of trial. Always contact the attorney who has issued the subpoena for trial testimony to arrange for the appearance time and date. Because trials are unpredictable, scheduling testimony during trial is more difficult. If it is not possible to alter one’s schedule, discuss alternatives with the requesting attorney such as a “perpetuation” deposition (generally videotaped)
I have not been subpoenaed, but an attorney has asked to meet with me or speak with me on the phone. What should I do?
This depends on the nature of the case. Follow the guidelines in the questions above. If UW is not a party to the case, and you do not think that the case involves a potential quality of care issue for UW School of Dentistry or other Health Sciences school, you may agree to meet or speak with attorneys if they have the appropriate release of information forms signed by the patient. If indicated, the patient’s legally authorized surrogate may sign the authorization; this usually is acceptable only if the patient is incapacitated. For a deceased patient, the personal representative of the estate must sign the authorization.
In criminal cases, you may request a joint meeting with the prosecutor and defense attorney to minimize the amount of time necessary to answer their questions. The attorneys are not obligated to agree to a joint meeting, but may agree to it.
In civil cases (e.g., personal injury) that do not involve UW, you should not meet or speak “ex parte” (alone) with the defense attorney (i.e., the attorney who is not representing the patient) without a specific authorization from the patient to do so. The exception to this is workers’ compensation, where you may meet or speak with the employer’s attorney/representative or an attorney/representative for the Department of Labor & Industries without a written authorization from or on behalf of the patient. The discussion should be limited to health information relevant to the occupational injury or illness.
You are not obligated to meet informally with attorneys and may request to be deposed if the case is in litigation. You may request compensation in accordance with UWD policies when you meet with an attorney informally. The fee should be agreed upon with the attorney requesting the meeting in advance. Payment must be billed in accordance with UWD policies.
What if my patient or my patient’s attorney is asking me about another provider’s care (either UW or outside provider), and I have concerns about that care?
You ultimately must decide what you are comfortable discussing with your patient or your patient’s attorney. However, here is some information that may be helpful to you when considering these issues.
- Taking a “legal position” with your patient may affect the therapeutic nature of the provider-patient relationship. It is perfectly appropriate to tell your patient you do not wish to become involved in legal proceedings (other than as a fact witness) in order to preserve a purely therapeutic relationship.
- If you express an opinion that could be considered an “expert” opinion as described above (e.g., an opinion on the standard of care or causation of damages), you may properly be subpoenaed to testify as an expert witness.
- Often, patients who express dissatisfaction to you about other providers simply have unanswered questions. It may be more beneficial for you to try to facilitate communication between your patient and the other provider. For example, you may be able to resolve the issue by contacting the other provider and encouraging them to speak with the patient. This also will give you more complete information about the patient’s prior care (see below). Staff should always include their manager or department director in these issues.
- If the other provider is a UW provider, it would be more helpful to the patient, to you, and to UW if you contact Health Sciences Risk Management about your concerns. You will be able to tell the patient that you will initiate an investigation into their concerns. We will be able to coordinate an appropriate QI investigation, involve the other provider, facilitate communication with the patient, and share the results with them.
- Different providers can have differing views on clinical care. It generally is not helpful for a treating provider to directly criticize another provider’s care, especially without complete information. This is why retained expert witnesses do not offer opinions without reviewing all the relevant records and other information. In addition, if you do express an opinion without having all the relevant information, you eventually may be in an awkward position in the legal record.
- If you do express an opinion on standard of care and causation without a thorough review of all relevant information, you will make it difficult for the provider you are criticizing to defend what in fact may have been appropriate care.
- If you would like to discuss any of these issues, you may contact Health Sciences Risk Management (206) 598-6303.
I am pretty sure I will need to testify at deposition or at trial. What should I know about the process?
Answers to frequently asked questions about the process of testifying are below. If you have additional questions, you may contact Health Sciences Risk Management (206) 598-6303).
1) Will a UW attorney go with me when I testify?
If the UW is not a party to the case, there generally will not be a UW attorney attending your testimony. This is the standard UW policy and procedure; however, there may be exceptions to this general approach if the circumstances are unique. If there are concerns about whether the UW may be implicated in a case, contact Health Sciences Risk Management (206) 598-6303).
2) Where will I give testimony?
Testimony may occur in several different settings:
- At a deposition (usually held at a private office),
- At a hearing, or
- In a courtroom.
Testimony may be given only with attorneys present (at a deposition) or in the presence of a judge and/or a jury (at trial). In any of these testimony situations, the testimony is a formal statement given under oath or promise of telling the truth.
A deposition allows each party in a lawsuit or administrative hearing to question any other party or other witness in the case. Depositions are generally conducted prior to trial. A “perpetuation” deposition is like testifying at trial and will become part of the court record. If the deposition is taken solely for “discovery” purposes, the deposition testimony generally may be used at trial only if the witness’ trial testimony contradicts his/her deposition testimony, or if the witness is unavailable during the trial to testify in person. However, any discovery deposition may become part of the court record (a public record), and you should assume that might happen with your deposition testimony.
3) What should I expect to occur when I testify?
After being sworn in as a witness, you will be asked questions, usually by all of the attorneys representing persons or entities in the case.
Testimony as a witness is not a “grand rounds” forum. There may be strategic reasons why some issues are not explored during the testimony. It is not your responsibility to tell everything you know or believe to be important. Wait for the question. The “scope” of questioning is much broader in a discovery deposition than at trial or in a perpetuation deposition.
Both the questions and answers you provide will be recorded, usually by a court reporter. If testimony is provided at a deposition, a written transcript of the testimony will be prepared. As the witness, you will be asked whether you want to read it or not. You may choose to read it and either sign that it is accurate or identify corrections. Alternatively, you may choose not to read it. This is your decision in a case where the UW is not a party to the lawsuit.
4) How should I conduct myself as a witness?
Guidelines for Testimony
- Tell the truth. You will be under oath. Giving an intentionally false answer is perjury, which is a crime. In addition, any false or inconsistent answers may be used to attack your credibility on all matters. Be honest. Be accurate. If only approximate dates, times, or distances are known, then give only your best approximation and say it is an approximation. If you answer mistakenly during testimony, simply say that you were mistaken and correct your statement.
- Discuss matters of concern in advance with either the UW attorney handling the case or with Health Sciences Risk Management (if no UW attorney is assigned; (206)598-6303. If you are concerned about something that might prove embarrassing or something that you have done, discuss it candidly with either the UW attorney handling the case or with Health Sciences Risk Management before giving testimony.
- Listen carefully to every question. Do not let the person asking the questions put you in the position of accepting half-truths on which further questions might be based. Be sure that you agree with each aspect of the question before answering, or clearly state any qualifications you believe are needed for complete accuracy.
- Be alert for leading or hypothetical questions. Some leading or hypothetical questions may result in a possible adverse conclusion.
For example, an attorney may ask, “Ordinarily, doctor, this result does not occur if the dentist uses reasonable care, right?” If you answer, “That is correct, this result does not ordinarily occur,” then you might have testified as an expert, perhaps against the UW’s position or against yourself. As an alternative, it may be more accurate to acknowledge that an adverse outcome is one of the inherent risks in the procedure.
- Be careful when asked about “authoritative texts.” If you are asked whether a particular text is authoritative and you respond “yes,” that answer may be interpreted to mean agreement with every statement contained in that text. Instead, you may wish to recognize that a book or article expresses only that author’s opinion, that it may be an incomplete expression of that opinion, and that it could be out of date. It may be more accurate to testify that you rely on your training and experience, and although you do read certain journals, articles and books in your field, you do not believe that any one text is completely authoritative.
- Answer in your own words and answer only the questions asked. Do not volunteer any additional information. Answer the questions with words that you normally use and feel comfortable using. Answer only one question at a time.
- Pause before beginning each answer. This gives you time to reflect on the question, and it also gives the UW attorney (if one is present), or another attorney an opportunity to make any necessary objections.
- Listen carefully to objections; something can be learned about the question from the objection. For example, an objection that a question is speculative may mean that you would need more information to be able to answer the question. If an objection is made to any question or answer, stop talking until you are directed to continue your testimony by the judge (at trial), the UW attorney or the examining attorney (at depositions). If there is no UW attorney at a deposition and you have serious concerns about answering a question, state that you need to consult with counsel and cannot answer until you have done so. Contact the UW Attorney General’s Office (206) 543-9220 for further advice. Do not provide those at the deposition with the basis for your concerns.
- If you do not understand a question, say so. Ask for clarification or for the question to be repeated. If requested, the court reporter will repeat a question as it was recorded.
- Do not guess or offer an opinion unless specifically requested to do so. A witness will generally be allowed to testify only to what s/he personally saw, heard or did. If you do not have personal knowledge, say so. Be willing to acknowledge the limits of your knowledge or expertise. Do not guess or offer an opinion unless it is specifically called for, and then answer only after waiting to hear if there is any objection.
- Where appropriate, qualify your answers. Testify accurately based on your memory. It may be necessary to be vague about a date or fact if you are uncertain. If you are not sure, say so (e.g., “to the best of my recollection” or “as best as I can recall: or “I believe”). There is no need to apologize if you do not recall or know requested information.
- Avoid using absolutes unless you are certain they are accurate. For example, saying “I never” or “I always” may be problematic later.
- Avoid using the word “inadvertent”. One of the several definitions of “inadvertent” is “reckless, careless, and negligent”. Thus, the statement “I inadvertently nicked the artery” could suggest an admission of negligence. Instead, you should simply state what happened, such as, “The artery was nicked.”
- Indicate whether you are paraphrasing or quoting. In testifying regarding conversations, make it clear whether you are paraphrasing or quoting directly.
- Do not offer or bring with you documents that have not been appropriately requested in advance. If an attorney wants to obtain documents, other legal procedures may apply. This is especially true of dental records. Attorneys who seek dental records should be referred to the Patient Record’s Office.
- If you are presented with and asked about a document, read it carefully before you begin to answer. If you do not recall the document, or do not know what the document says or what its author meant, then say so. Do not guess at what it might have meant.
- Speak slowly, clearly and audibly. The court reporter must hear every word you say in order to transcribe your testimony. Let the examiner complete the question before you begin to answer. Try to answer “yes” or “no” when appropriate; do not nod your head or say “uh huh”.
- If warranted, make an oral statement about inappropriate actions. The transcript will reflect only what is said. It will not reflect, for example, that an attorney yells or hovers. If you are confronted with inappropriate actions such as these, you may say what is happening at the time, and the transcript will include the statement. However, do not let yourself be provoked into an argument with the lawyers.
- Be serious and polite at all times. Do not give cute or clever answers, as they may be misinterpreted. Avoid all obscenities, slurs, and references that could be considered derogatory or offensive to others. Remember that your statement may be read to a judge or jury, and thus become part of a public record.
- If you need a break, ask for one. Paying attention to your level of fatigue will help ensure effective listening and help avoid mental lapses that can result in problems with your testimony.
- Avoid casual conversation with opposing counsel. This applies before, during and after the deposition or trial.
 For example, most medical records may be released pursuant to a subpoena as long as a “notice of intent” to subpoena the records has been sent (and copied to the patient) 14 days in advance. However, certain types of records (e.g., mental health records) may be released ONLY upon express agreement of the patient or under a court order.
 This refers to cases involving UWD patients. For cases involving “outside” patients (i.e., if you are a reviewing expert), you would not request to be deposed by the party retaining you, and you would not agree to meet informally with the other party.