We've recently run into a situation where a defense attorney has subpoenaed from the hospital a victim's rape exam records. Our office was never given notice of said request and only became aware of the defense attorney subpoenaing such records upon a chance review of the court's file well after the fact.

It appears HIPAA allows a hospital to disclose such records absent a court order only if assurances on the face of the subpoena indicate the named victim has received notice of request and has no objection.

Our State's subpoenas don't have that language and are always honored and of course the defense attorney's subpoena doesn't include such language either. How do y'all handle these issues in your jurisdiction? Any suggestions would be appreciated.

It may be little solace to your victim, but If I were consulting to a hospital or medical entity, I would argue that release in response to a discovery request or subpoena without the specific authorization of the patient or a court order is to expose the entity to great liability.

There was a New Jersey case - though civil in nature -- Crescenzo v. Crane, No. A-3901-00T2, 2002.NJ.0000552< http://www.versuslaw.com>, wherein the court permitted a lawsuit for breach of confidentiality against a physician who had released a patient's records without notice to or authorization from her as well as against the opposing attorney who had improperly issued the discovery subpoena. The court insisted on strict compliance by attorneys with the Rules of Court concerning service of discovery subpoenas and emphasized the obligation of healthcare providers to protect patient confidentiality with adverse consequences in the event of breach. The court noted the limitations of the Board of Medical Examiner regulations in N.J.A.C. 13:35-6.5 (d)(1) to (4) on the ability of a physician to "simply disgorge privilege records as a result of a third party subpoena" that was not embodied in a court order. The court outlined steps to be taken by the physician before releasing such records: insisting that the requesting attorney obtain a release signed by the patient or contacting the patient to obtain authorization for the release of the records.

If any party wants records, let the court decide as a court subpoena is sufficient without consent. And if they are mental health records, as opposed to general medical records, I would say the same thing were it the State who needed them. Greg Gilliland not long ago posted the oppposite problem - reluctance of an entity to provide records.