In a recent decision, the U.S. Court of Appeals for the Third Circuit held that a physician acting as custodian of records may not withhold records subpoenaed from his professional association on Fifth Amendment self-incrimination grounds. Importantly, the court did not address, as we do below, certain circumstances in which this physician could have invoked the Fifth Amendment.

An unnamed physician, identified as “John Doe,” received a federal grand jury subpoena as custodian of records for his professional association, referred to as “ABC Entity,” requesting documents related to a U.S. Department of Justice (DOJ) investigation into ABC Entity’s relationship with a blood-testing provider suspected of bribing physicians. In Re: The Matter Of The Grand Jury, No. 15-1264 (3d Cir. 2015). Doe did not dispute that, ordinarily, corporations are not entitled to invoke the privilege of the Fifth Amendment or that custodians of records for corporations similarly are not entitled to invoke the privilege. Instead, Doe asserted that as a sole practitioner with sole control over the business records, he was entitled to Fifth Amendment protection because “the jury will inevitably conclude that he produced any incriminating documents.” The court rejected Doe’s contentions that sole practitioners should be distinguished from larger entities and instead drew a line between incorporated and unincorporated entities, evaluating whether an entity has an “established institutional identity independent of its individual partners.” Because ABC Entity, a professional association, possessed an independent institutional identity and maintained business records that could in no way be considered Doe’s personal documents, Doe could not invoke the privilege against self-incrimination.

The circumstances underlying Doe’s situation – where the custodian of records is likely the target of the investigation – will undoubtedly arise in the healthcare context again, as the DOJ pursues sole practitioners just as aggressively as group providers. Thus, providers, particularly sole practitioners, should know when they can invoke the Fifth Amendment when directed to produce records in the grand jury on behalf of their corporate entity. In general, apart from identifying and authenticating the documents, a custodian need not answer questions in the grand jury that may tend to incriminate him individually. For example, after producing the corporate records, a custodian does not have to indicate who had possession of such records at any particular time or the location of the records.

Examples of other questions that may allow a custodian to invoke the Fifth Amendment include:

  • What types of records are typically contained in a patient’s file?
  • Why are the billing records not contained in this patient’s file?
  • Who billed the claims for the services recorded in this patient’s file?
  • Did you perform the services recorded in this patient’s file?
  • Did you sign the referral form contained in this patient’s file?

Providers who receive grand jury subpoenas should contact counsel at the outset in an effort to identify their role in the investigation – namely, whether the provider is a target or merely a witness who maintains relevant documents. This threshold issue is critical in developing case strategies, including how to best address situations like the one discussed above.