Sorry for the stupid question....

Fact Scenario:

Defendant has long history of DWI arrests/convictions. Defendant admits to consuming alcohol on night in question, and appears very intoxicated. Months following his arrest and subsequent Indictment, and after announcing ready on multiple occasions, the Defendant sought a continuance because he needed to have brain surgery to remove a non-cancerous tumor. The continuance was obviously granted and the Defense attorney filed subpoenas for the medical records of the jail staff. Based on a letter filed by his physician to the Court, additional time was granted to the Defendant for recovery.

Any way to obtain his medical records (sans a release from the Defendant) from this doctor to refute what will surely be a defense of the tumor made me act intoxicated? I'm just thinking the records must not support his theory and that's why he isn't requesting them.

It may be that I'm confused but I"m not clear why you need a defendant's release for his medical records. If you're worried about HIPAA, you should't be as it has an exception (whose exact wording escapes me at the moment as someone in my office has borrowed my TDCAA HIPAA book) for law enforcement and ongoing investigative purposes.

Unless I'm missing something you can just issue a grand jury subpoena for the medical records.

I've used a regular subpoena as well to get medical records. Most medical offices recognize the exception.

I have issued a subpoena (regular not grand jury)and the attorney for the Doctor is claiming it is a violation of HIPPA to divulge the records. The problem I'm having is that the only law I find on defendant's medical records is regarding grand jury subpoenas for blood work (BAC) at the time of the incident. I want records from months after the date alleged in the Indictment. Therefore, I don't know what, if any, law I can present to the Judge support my request should they refuse to comply.

Attorneys for doctors and hospitals often cite HIPAA because it applies to so much of what they do and they are generally unfamiliar with the criminal justice process.

However, you would be better off with a grand jury subpoena as that is specifically cited as an exception to the HIPAA privacy requirements in the CFRs.

See: 45 C.F.R. � 164.512(f)(1)(ii)(B) (2006)

There is a good, if brief, discussion of this issue as part of a case that seems similar enough to your facts to be helpful. Murray v. State 245 S.W.3d 37, from the 3rd COA.

There are probably many others but thats a relatively recent case from my neck of the woods and hence the one I could most easily call to memory.

In any case, you can always just call the attorney and the doctor's (or hospital's) administrator and let them know that the exception exists and you expect them to follow the law. Let them know that if they refuse you will issue a subpeona dueces tecum, and a writ of attachment if necessary, for a pre-trial docket each and every time you need documents. You will bring the doctor to court to produce records for your review and if necessary to explain to the judge why he/she refuses to comply with a valid order. Tell them that the grand jury subpoena is an attempt to have good working relationships with them and reduce the imposition on them. If they prefer to sit in court for a day or more every time you need documents rather than just sending them to you, you would be happy to oblige.

Of course, you should definitely talk to your elected before taking that approach, as its not your name alone that may be remembered.

The couple times I have confronted this I explained gently that the dueces tecum was the alternative, that I didn't really want to do that, that the GJ subpeona was authorized by law and an exception to HIPAA and that I'd done it that way to make their lives easier. That usually is enough to ensure cooperation.

http://www.ndaa.org/publications/newsletters/update_volume_16_number_4_2003.html

The above is a link to the law that you need to get the medical records. It is an article from the National District Attorney's website.

Have I told you all lately that I love you? Thank you so much for the help. MUCH appreciated!!

ditto