Having relocated during the last year to central Texas, I am now having to fight the same battle fought a few years ago with Houston area hospitals over compliance with criminal trial subpoenas for medical records.

Today, I was informed by the assistant general counsel of the austin area mega hospital chain that Travis County DA's office has submitted a brief to them "explaining" why district attorneys are judicial officers and why district attorneys are entitled to issue court subpoenas (without accompanying court orders signed by a district judge) for medical records involved in criminal cases.

I asked him what entitled him to ignore subpoenas issued by a district clerk on request of a district attorney's office,and he was unable to supply a realistic answer. To my mind, there are two ways for the hospital to deal with a subpoena received: (1) file a motion to quash or (2) comply with the subpoena.

When I informed him that Houston hospitals capitulated in this fight years ago, and agreed to recognize subpoena's issued by ada's, he was incredulous.

Any central Texas/Austin area prosecutors who don't have this problem with the biggest hospital chain in the area? What was your solution?

I remember John B's approach from a prior post on a similar topic of hippa compliance, which was have the custodian come to trial and wait until it is convenient to have the records admitted.

I always try to make sure we have a real, live human being named as custodian of records so that there is someone to throw in jail--"custodian of records" is insufficient to do that, in my view.

Greg: We're having the same problem. We subpoenaed their legal counsel to come to court and explain his advice to his client to ignore our subpoena and he threatened to file a grievance on us. That particular case ended up pleading so the matter is still unresolved. We've had no problem with other hospital.

Chris, without mentioning the name of the hospital chain in question, I feel comfortable that you know which one it is, and they control most of the hospitals in Travis Co, which are utilized by crime victims from both of our counties as well.

The in house hospital lawyer said that they had received a brief from Travis Co. DA's office on why a district attorney is a judicial officer with regard to subpoenas issued by same. They just haven't gotten around to reading it.

Does anyone know who from TCDA's office is handling this matter with the largest hospital network in Austin?

As suggested above, just follow the law. Issue a subpoena (grand jury or trial) and have it made out to a specific person for a specific date. The person must bring the records to the place at the date and time required. Then, they can have a seat, like all other witnesses, and await the availability of a grand jury or judge to receive the records.

Of course, if the custodian's legal counsel wishes to contest the subpoena, the proper recourse is for him to file a motion to quash and make his arguments, in due course, before the judge. One assumes the judge, being a judicial officer, will have sufficient authority to convince the lawyer to turn over the documents. Otherwise, somebody is going to jail.

Of course, during this process, which in some crowded jurisdictions could take hours and hours, you should feel free to inform the custodian/lawyer that compliance with the subpoena (and the many to follow) may be accomplished by simply giving our investigator a phone call and he will pick up the records when they are ready. But, this last solution is merely one of convenience which can be rejected by the custodian/lawyer.

Don't let your day be ruined by long, loud arguments about HIPPA. Markus already did that for you. Just follow the law and get the records. Guaranteed.

[This message was edited by John Bradley on 02-16-06 at .]