CONSIDER YOURSELF SERVED - Mercy
Transcript of CONSIDER YOURSELF SERVED - Mercy
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CONSIDER
YOURSELF SERVEDDan Patterson
Greene County Prosecuting Attorney
July 19, 2018
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You arrive at work and find a subpoena
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You wonder:
1. Should I just throw the subpoena away and not show up?
2. Can I decline the subpoena or get out of going?
3. Do I have any say in when this court appearance is scheduled?
4. If I have to go, am I compensated for my time?
5. Does testifying about a patient’s medical problems violate HIPAA?
6. Does it matter that I got the subpoena in the mail?
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Yes, we (and the child victim) really need you!
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Treating Medical Providers – Critical Fact Witnesses
• Called to testify to first-hand knowledge of:
• Medical history provided;
• Statements made by child;
• Examination of child (injuries or lack of visible injuries);
• Diagnosis; and
• Treatment.
• While you are not called as an expert, you can offer objective opinion testimony based on your expertise.
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HIPAA allows you to testify
• 160.203(c) - HIPAA rules do not apply when the “provision of State law . . . provides for the reporting of . . . child abuse . . . or for the conduct of . . . investigation, or intervention.”
• This broadly worded exception to HIPAA’s privacy protections permit:
• “reporting” and
• disclosure of information to those conducting “investigation” and “intervention” in CAN cases.
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Missouri law empowers you to testify
Section 210.140, RSMo.
• [The doctor/patient privilege] shall not apply to situations
involving known or suspected child abuse or neglect and shall not
constitute grounds for
• Failure to report . . .,
• Failure to cooperate with the [Children’s] division . . . , or
• To give . . . evidence in any judicial proceeding . . .
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KEY INFORMATION
• Case number
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KEY INFORMATION
• Case number
• Assistant Prosecutor
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KEY INFORMATION
• Case number
• Assistant Prosecutor
• Defendant name
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KEY INFORMATION
• Case number
• Assistant Prosecutor
• Defendant name
• Date/time of start of trial
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KEY INFORMATION
• Case number
• Assistant Prosecutor
• Defendant name
• Date/time of start of trial
• Who to call for information
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WHY APPEARANCE TIMES ARE UNCERTAIN
• Jury Trial Dockets
• Unlike office appointments
• More like trauma triage
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Responding to a State Subpoena
• Reply right away –
• We will do our best to accommodate your schedule and conflicts.
• Deposition settings usually flexible
• Trial testimony more difficult
• We can provide you relevant medical records ahead of time.
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You help the jury apply the law to medical facts
• As a witness you are an objective educator
• Your description of the child’s injuries you observed, or lack of injury, allows
jury to:
• Understand important information:
• Mechanism of injury
• Age of injury, or relative ages of injuries
• Identify inconsistent medical histories
• Apply definitions of: abuse, neglect, physical injury, serious physical injury, etc.
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Can’t Prosecutor Just Use a Deposition?
Confrontation Clause Requires Your Presence
“in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
6th Amendment, U.S. Constitution
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We will accommodate you . . .
and we make house calls
• Contact you prefer
• Pretrial meetings
• Will come to you
• Need you to educate us
• Work with you to identify photographs/exhibits
• Determine what you can and cannot testify to
• Prepare you for cross examination
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What about of Cross Examination . . .
• Remember you are an expert in your field you are not the lawyer
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1 Rule and 6 Tips for Testifying
Rule: Tell the truth
1. Prepare
2. Understand the Question
3. Think before Answering
4. Answer the Question
5. Don’t play lawyer
6. Remember your audience
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We Need You to Stop Child Abuse
• We understand this is not something you look forward to
• We appreciate this is not your job
• We will do everything we can to reasonably accommodate you
• We will help you be as prepared and comfortable as possible
• Prosecuting CAN is prevention work
• We appreciate the public service you are providing incidental to your work