Earlier this year in a criminal case in the federal District of New Jersey, a physician was indicted for conspiracy to distribute controlled substances, and the indictment also included a count for violation of 18 U.S.C.§ 1519, “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” This count was based on the allegation that medical records were altered after they had been subpoenaed. Based on a reading of the indictment, the allegation appears to arise out of a review of the medical records that were produced in response to a subpoena, as compared to the same medical records that were later seized from the medical practice during the execution of a search warrant.
Responding to any request for records kept in the normal course of business is complicated business, especially when it involves a subpoena. There is a right way and a wrong way to respond. Exactly what needs to be produced, whether the subpoena can be challenged as onerous or that the requested records are outside the scope of the investigation, whether explanations should be given along with production of records, whether documents are responsive or non-responsive to the subpoena, whether the production of records actually equals a testimonial response, whether any documents are privileged, and how to comply with HIPAA requirements, are just some of the legal issues that confront a production of records pursuant to a subpoena in the health care and life sciences arenas. These are not questions to be answered without the benefit of legal counsel.
Failing to produce documents that are clearly responsive and are not privileged, or altering documents to give a false appearance, can be considered obstruction of an official investigation, and can not only be considered as contempt but also as evidence of a guilty “state of mind” regarding the underlying conduct that is being investigated. It will exponentially complicate the defense in the investigation.
How Frier Levitt Can Help
If and when served with a subpoena, cordially take it and engage in no conversation other than informing the agents or officials serving the subpoena that they will hear from your legal counsel, and then call counsel immediately. Frier Levitt stands ready to assist you in responding to all forms of subpoenas and requests for records. For more information on subpoena compliance and how to respond to any request for healthcare or life sciences records, contact Frier Levitt and speak to an attorney in our firm’s White Collar Criminal Defense and Government Investigations Group. Our Group is made up of attorney with extensive experience in subpoena compliance and responses to Government requests for records.