A fellow prosecutor froma neighboring county has asked me, if we have to get an order signed by a judge to accompany all subpoenaes for medical records. Seems he has a case, where their grand jury subpoenaed a defendant's medical records & the hospital complied. Defense attorney is now threatening to sue hospital for compliance with subpoena in violation of HIPPA.

I do not know the answer off the top of my head. Given the sensitivity of most of the entities, from whom we subpoena records, I've generally relied on the entity itself and/or its attorneys to move to quash subpoenaes issued by our grand jury, if they felt there was something amiss.

Anybody know?

The hospital we routinely get records from requires a court order. The hospital's attorney gave us a form for the order and now we generate it when we need records. The hospital wants this order in place of a subpoena.

I have had a two year running gun battle (so to speak) with a defense attorney on HIPAA visa via subpoenas and search warrants and so forth. It was a DWI 1st. The blood test was taken by hospital nurses and tested by a hospital lab. I have trial briefs, forms for a subpoena to be issued by a judge (does a judge have the power to do that under the CCP?) I have a bunch of web site references. I have a 3 inch trial note book on this very issue. I sort of got the bit between my teeth and wouldn't give in.

What I have to share with you is way more than I can handle in this post. Most of my materials are in MS Word and of course a public record.

I won all the motions to suppress but was then developing significant chain of custody problems. I settled a DWI 1st for Deadly Conduct and a $4,000 fine.

Let me know if you want this avalanche of materials. I usually don�t put my email directly on a website so just post back or call me at 806 659 3703.

John Hutchison CA Hansford Co.

I notice that you are asking for a fellow prosecutor. The invitation to call is extended to that person also.

John

The fellow prosecutor, who asked me in a voice-mail, is in Lamb County. I will call him back & tell him what you said, then ask him to share with me whatever he obtains from you.

Thanks!

It may be a lone voice crying in the wilderness, but perhaps prosecutors should write the federal agency responsible for HIPAA rule-making and point out that hospitals and criminal defense attorneys do not want to recognized a grand jury subpoena in many cases, and that the rules should be clarified. Just a thought.

Janette Ansolabehere

We have had that issue arise as well and most all of our hospitals comply with the GJ subpoena. By the clear wording of the Hippa law under the heading of "Permitted Uses and Disclosures" such records can be released as "required by law".

"Covered Entities may use and disclose protected health information without individual authorization as required by law (including by statute, regulations, or court orders)".

Under the heading "Law Enforcement Purposes".

"Covered Entities may use and disclose protected health information to law enforcement officials for law enforcement purposes under the following six circumstances, and subject to specific conditions: (1) as required by law (including court orders, court-ordered warrants, subpoenas, and administrative requests;.."

I believe, based on the above language, that use of subpoenas (which are issued by authority of the Court) are a sufficient legal means of obtaining the records.

The cure, if necessary, is to issue the subpoena duces tecum and have the custodian make a personal trip to the grand jury or courthouse each time. If the hospital does not want to recognize the clear language of the exception and wants to hear a judge issue an order each time, then have the hospital send an individual, and presumably a lawyer, each time. I don't imagine that will last too long.

We have never had the issue raised as a problem. I believe, as Richard Alpert points out, the current rules are very clear and need no further clarification.

I was defending an agg sx asslt case once, and made a proper request for medical records. The hospital would not release them. I had a talk with the Attorney for the hospital, who agreed that my client, as a biological parent (with all rights and duties) had a right to them, but they were being held for 'law enforcement purposes', not medical purposes, so he wouldn't release them. When asked to put that in writing, he wouldn't do so. I merely advised him there is an easy way and a hard way. The hardway is to issue the custodian a SDT for a non-jury trial, hearing day. I couldn't guarantee when the Judge would get around to the discovery hearing, because other criminal cases would need to be disposed of, and I would be working several courts at the same time. The custodian could conceivably be there all day, and the Judge didn't break for lunch, but I was OK with that. Got the records the next day. There is nothing worse to a profit making enterprise than an unbillable, waste of time.

Thanks to all for their answers & wisdom. I got the information to the prosecutor, who asked me about it. He figured, we in the bigger county would've had some experience in this area, but luckily, we have not. He simply has a blustering defense advocate on his hands.

Thanks again to everybody for their assistance & their e-mails!

Just want to make sure I have this right.
I have obtained Med.Records on a def. charged w/DWI. I issued a SDT to the custodian of records. Filed it w/the county clerk (we are the county attorney's office and handle Misd. - Not felonies so No Grand Jury Sub.) I did not have the judge sign it. Just did it like we do for any other trial. Looking at the SDT, it was signed by the County Clerk (deputy) and ordered the documents to be provided, blah, blah, blah.

Question is, Is this considered a court order? If not, does it have to be? If this is considered Court Ordered, anything I can cite to passify the def. atty that is citing HIPPA and that the SDT wasn't signed by the Court and thus is NOT a court order and thus violates HIPPA.

Finally, is it our problem now or is his gripe, if any, with the hospital that turned over the docs? Not trying to hang them out, but trying to get it straight.

Thanks

quote:

---

"Covered Entities may use and disclose protected health information without individual authorization as required by law (including by statute, regulations, or court orders)".

Under the heading "Law Enforcement Purposes".

"Covered Entities may use and disclose protected health information to law enforcement officials for law enforcement purposes under the following six circumstances, and subject to specific conditions: (1) as required by law (including court orders, court-ordered warrants, subpoenas, and administrative requests;.."

I believe, based on the above language, that use of subpoenas (which are issued by authority of the Court) are a sufficient legal means of obtaining the records.

---

"The question is, Is this considered a court order? If not, does it have to be? If this is considered Court Ordered."

I ran into a defense attorney who wanted a court order so I just made a motion then got the judge to order the clerk to issue the subpoena. None of this was without a contested hearing however. If you want to call 806 659 3703 or fax to 806 659 1035 I will email you my forms.
John Hutchison
Hansford County.

JMH,

We (Williamson, Travis, Bastrop, Caldwell, etc.) have the problem that our hospitals (any "seton" affiliated hospital) are not recognizing a county clerk as a judicial officer and are requiring a Judge's signature on the subpoena or they won't honor it. So we are now at the point of a get a Grand Jury subpoena before we file the case, get a "court order" or subpoena the custodian to bring the records to court day of trial.

I believe the First Assistants (at least in CA offices)in the above counties have gone to bat with the Seton network of hospitals, but they cited some case law about clerk's not being judicial officers and have refused to provide records for a clerk signed subpoena. We have also now had to provide a copy of the GJ application with the Judge's signature for plain ole GJ subpoenas (I think there is another thread related to this topic in the last couple of months..try this link).

https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=157098965&m=2731017811&r=2031009811#2031009811

I believe that DA's office will have less of an issue with this as they usually get records with GJ subpoenas. Unfortunately, CA's offices have too much volume to get records before filing.

If you figure it out, please pass the info along.

I see what your saying and have had a hospital in San Antonio require the Judge to sign and he did so. I guess what I'm wondering is that it sounds like the problems most are having is getting the Hospital to provide the records. The hospitals are the ones requiring it.
Since this hospital provided the documents, that isn't my issue. I just want to make sure I'm not going to have an admissability issue (other than Chain of custody, witnesses, etc.)