Found a case, US v. Zamora out of Corpus that says a Sub Duces Tecum issued by the Clerk of the court was not sufficient to compel a hospital to disclose med. records w/o authorization b/c the court clerk was not a Judicial Officer.

By my reading, our SDT issued by the county clerk could be problematic to the hospital. However, am I thinking correct in that if the med.records are turned over, then it is a moot point? I guess my real question is do any of you know of a case, fed. or state, that says med records obtained, IF in violation of HIPAA, would NOT be admissable in a criminal case??? How would it be a suppression issue and not simply a civil issue?

I had one of these issues but HIPAA was not yet effective when the search wartant was issued. Yocom v. State, No. 2-03-181-CR, 2004 WL 742888 (Tex.App. -- Fort Worth Apr 08, 2004) pet. ref'd 149 S.W.3d 159 (Tex.Crim.App. 2004). The claim was that HIPAA gave him a reasonable expectation of privacy in the hosptial records.

The only way it might be a suppression issue would be through CCP Art. 38.23, claiming that the evidence was obtained through violation of a law.

OK, so defendant raises the issue. In response, State files for a court subpoena and a duplicate copy of the records. How is that protecting anyone's rights? HIPPA is a big mess.

So, would it be permissible to go and have the judge sign a court order, prior to the motion to suppress w/is still a couple of weeks out, since I know this will come up? OR just wait and see what happens at the MTS, and raise it then?

To resurrect an old topic, has anyone had this issue come up or found a way to resolve it yet?

In Austin area, the entire Seton Healthcare Network (several hospitals) will not honor a subpoena issued by a county clerk (at least for misdemeanor cases).

We either issue an out of county GJ subpoena (if the hospital is in Travis Co) before we file the case, or we crafted an application and order (similar to a GJ subpoena format) that we have the Judge sign if the case has already been filed.