A defendant gets arrested for misdemeanor DWI. Blood is taken at the hospital for medical work but no consent is given or warrant is obtained to get blood for law enforcement. Hospital won't give up the results, citing HIPPA. County Attorney's Office would like the DA's office to get a Grand Jury subpoena for the results. Thoughts?
there was a case on that issue a year or so ago that said you can't use a grand jury subpoena unless you present the case to the grand jury.
See State v. Jewell, 2013 Tex. App. LEXIS 930
Similar issues are currently pending before the CCA. See State v. Huse, No. 07-12-00383-CR, 2014 WL 931265, pet. granted Sep 17, 2014.
The issues granted on PDR are:
1. After State v. Hardy, does a citizen have standing to challenge the process by which his medical records are obtained?
2. Must the State comply with federal requirements under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to obtain a citizen's medical records, and if it fails to do so, is there any remedy?
Making sure the GJ subpoena is tight and that the procedure used is compliant with HIPAA seems to be the safe route.
HIPPA actually grants law enforcement several exceptions to the privacy rule, including access to medical records via warrant or just a regular ol' subpoena.
This is a good summary.
Link: Law Enforcement Exceptions to HIPPA
In the past I have always called the hospital administrator and/or the attorney for the hospital. So far every time the hospital staff has been repeatedly admonished about civil liability and rarely if ever told anything about the law enforcement exception. Often, the hospital lawyer hasn't thought much about that either, at least in the cases I've had. If you point out the exception and the law to the hospital lawyer your records typically arrive a short time later along with a helpful affidavit.
In the alternative you can just subpoena duces tecum the custodian of records to a docket setting and/or a pre-trial setting and let them sit while you review all the records. Heck sometimes even the threat to do that is enough and if not, a bit of time sitting in the courtroom wasting time may be enough to convince folks that making use of the exception as it exists is a good idea. Obviously talk to your elected before you do this to make sure they are ok with you picking this particular battle but I have seen it work in the past.
Anyone have a form they use for the "application to the district court" for a 20.11 grand jury subpoena they would share with me? Does it look just like a regular subpoena request we would use to summon a person to testify and/or produce records at trial; and do you use the same process as requesting a subpoena for a trial witness (i.e. application to district clerk and clerk issues the subpoena)?
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