You're Subpoenaed. Now What?
Picture this: You're a therapist treating six-year-old twins in foster care. Their biological mother is seeking more visitation rights. Then the subpoena arrives. The court wants your professional opinion on whether changing the visitation schedule would help or harm the children. You've never been to court. You're not a lawyer. And your client's confidentiality hangs in the balance.
This isn't a hypothetical. It's a real case reported by Berxi (source: Berxi). The therapist, insured through Berxi, reached out for help. Her policy provided access to legal counsel who guided her through the process—buying time, setting boundaries, and ensuring she didn't violate confidentiality. The outcome? She testified with confidence, not fear.
Subpoenas are scary, especially for mental health providers. But here's the thing: your professional liability insurance can be your lifeline. Let's break down what happened, how coverage responded, and what you need to know to protect yourself.
What Happened in the Subpoena Scenario?
According to Berxi's account, the therapist received a subpoena to testify in a foster care case involving two young siblings. The biological mother was pushing for increased visitation, and the court wanted the therapist's clinical opinion on whether that would be beneficial or harmful. The therapist had no legal experience and was understandably anxious.
She contacted her insurer. The carrier assigned an attorney to represent her. That lawyer helped her:
- Buy time by negotiating a later court date.
- Set boundaries on what she could and couldn't say, protecting client confidentiality.
- Prepare her testimony so she wasn't blindsided by hostile questions.
In the end, she testified confidently. The outcome wasn't about winning or losing—it was about fulfilling her legal duty without compromising her ethics. That's exactly what professional liability coverage should do.
Why Subpoenas Are Tricky for Therapists
Subpoenas for client records or testimony are common in family court, custody battles, and personal injury cases. But for therapists, they create a conflict: the legal system demands information, while ethics (and HIPAA) demand confidentiality. You can't just hand over everything. You need to know your state's privilege laws, whether to object, and how to respond without waiving the client's rights.
Most employer policies won't help here. They're designed to protect the facility, not you. And they often exclude license defense or legal representation for subpoenas. That's where your own policy steps in.
How Professional Liability Insurance Helps With Subpoenas
Not all policies are equal. The key features to look for include:
- Legal representation for subpoenas and licensing board complaints. Carriers like Berxi, HPSO, and Proliability include this as part of their coverage.
- License defense coverage. HPSO offers up to $25,000 for license defense; Proliability offers $25,000 per incident.
- Occurrence vs. claims-made. Occurrence policies (like those from HPSO, CPH) cover incidents that happened while the policy was active, even if the claim is filed years later. No tail needed. Claims-made policies require you to keep the policy active or buy tail coverage.
In the Berxi case, the therapist's policy covered the attorney's fees and guidance. That alone can cost thousands out of pocket. Berxi's policies are occurrence-based, meaning the coverage attaches to the incident date, not the claim date.
What the Stats Say
According to the National Practitioner Data Bank (NPDB), 26% of medical malpractice payments from 2012 to 2022 were made on behalf of non-physicians. HPSO reports that the average occupational therapy malpractice lawsuit totals $60,299. These numbers remind us that no one is immune.
For therapists, annual premiums are relatively affordable. Berxi quotes around $363 per year for supplemental coverage and $765 for primary. CPH & Associates offers occurrence policies with State Licensing Board Defense up to $35,000. Therapist malpractice insurance start around $100–$350 for physical/occupational therapists, and even less for some allied health pros.
What to Do If You're Subpoenaed
- Don't ignore it. A subpoena is a legal order. Ignoring it can lead to contempt of court.
- Contact your insurer immediately. Most carriers have a 24/7 claims line. They'll assign an attorney to advise you.
- Do not release records without a signed authorization or court order. Your attorney will help you determine if you need to object or seek a protective order.
- Document everything. Keep copies of the subpoena, any communications, and your attorney's instructions.
If you don't have coverage, you may need to hire your own attorney. That can easily cost $300–$500 per hour. A policy that costs a few hundred dollars a year is a bargain by comparison.
Can You Be Sued for a Confidentiality Issue?
Yes. If you improperly disclose client information—even under subpoena—you could face a lawsuit, a licensing board complaint, or both. That's why legal guidance is critical. Your professional liability policy typically covers claims arising from confidentiality breaches, as long as you follow the law and your attorney's advice.
Which Carriers Offer Subpoena/Legal Defense?
Several carriers explicitly include subpoena assistance and license defense:
- HPSO/NSO: $1M/$6M occurrence, license defense up to $25,000, portable between jobs.
- Proliability (Mercer): Up to $1M/$3M occurrence, $25,000 board reimbursement, $50,000 HIPAA defense.
- Berxi: Occurrence and claims-made, defense costs outside limits, $0 deductible, reputation coverage.
- CM&F Group: Up to $1M/$6M portable, telemedicine and license defense included.
- CPH & Associates: Occurrence (lifetime), $35,000 State Licensing Board Defense, A++ rated.
You can compare these carriers on our carrier comparison hub.
A Quick Caveat
Every policy has exclusions and limits. The coverage described here is typical but not guaranteed. Always read the policy, or ask the carrier directly about subpoena assistance and license defense. Premiums vary by state, specialty, and claims history. The ranges I've cited are estimates—get a quote for your exact situation.
The Bottom Line
The therapist in the Berxi story didn't panic. She had coverage, and it worked. Subpoenas are part of the job for many therapists. Don't wait until you get one to figure out your options. If your employer's policy doesn't cover you for legal representation, or if you're in private practice, therapist malpractice insurance is a smart investment. It's not just about paying claims—it's about having a lawyer in your corner when the court calls.