I am working on a case with records from UTMB on a TDCJ inmate. I have the records. I have identified potential witnesses in the records who work for UTMB. I made an appointment to see one of the potential witnesses, who wanted to speak to me, but I was told by UTMB Legal that I could not speak with this person because UTMB was claiming the patient's privilege and because of HIPPA. I told her I already had the records and that Texas does not have a doctor patient privilege.

I am looking for a way to resolve this situation and it does not have to be pretty.

If you want to talk privately please email me at philiplhall@hotmail.com

Thanks in advance.

Phil Hall
Special Prosecution Unit

How's it going, Phil? I do not see how the legal department can claim the patient's HIPPA privilege regarding a 3rd party. Just subpoena the person to a pre-trial date, and have the legal department show up with a motion to quash - at least it will give them some real courtroom experience.

That's where it looks like it is going. In the meantime, the case suffers.

http://www.hhs.gov/hipaafaq/permitted/law/505.html

Don't you fit into the last category at the bottom of the page? Perhaps a printout of this page of HHS FAQ's on HIPPA for law enforcement would persuade them it's ok to release the info for law enforcement purposes relating to the security of a penal institution...

If you don't fit that category, other FAQ's at the site might help, re: procedures.

Hospitals are often trying to CYA has they can be sued if they wongly disclose info.

HIPPA has a law enforcement exception, and I belive it is fine to just use a subpoena, but sometimes they still complain (I have always recived the records after some fight large or small).

What I do now is just go and get the Judge to sign off on the subpoena, there is another exception to HIPPA for a court ordered diclousure this makes the hospitals feel alot better. It goes faster and Defense is happy too.

Have you ever had the hopital or other entity lawyer specifically tell a witness not to speak with you? That is what is happening right now.

I recently had a hospital refuse to let a social worker talk to law enforcement, citing a section of the Health & Safety Code. (I've slept since then, and I don't remember what section.) In my situation, the officer was trying to confirm that a defendant had told a social worker at the hospital that he was going to harm certain people. The hospital was much more concerned that the social worker had violated patient confidentiality by warning the people threatened, than with cooperating with an attempted murder investigation.

I spend about an hour talking to the hospital Compliance Officer, whose entire job is apparently to jack with me, who finally told me that the information was documented in the medical records that the officer was scheduled to pick up the next day. In other words, she just spent an hour refusing to let me have information that she was going to give me the next day. I felt like I had fallen down the rabbit hole. Every time she told me how the defendant could sue the hospital for disclosing that he had threatened to kill people, I would tell her that she should be more concerned with the lawsuit from the victim's family if he had followed through and the victim had not been warned.

I'm developing a tic just remembering the conversation...

Phill and I have already conversed on this issue and I agree that counsel for health care institutions are overly cautious; however, I could not help but respond to the issue of duty to warn -- for the Tarasoff rule does not apply in Texas.

There is no duty to warn in Texas and, the courts have held that if a provider having a duty to maintain confidential information (pursuant to Tex. Health & Safety Code Chapt. 611 -- also, see 611.004 for the exceptions to confidentiality by a mental health provider in other than judicial or administrative proceedings) does abrogate that duty - he/she would be liable in tort! See Thapur v. Zezulka,994 SW2d 635 (Tex.1999), also Van Horn v. Chambers, 970 S.W.2d 542(Tex. 1998), compare with a seminal case that analyzes Tarasoff, and delineates the rules common in other jurisdictions, Currie v. United States, 644 F. Supp. 1074 (M.D.N.C. 10/3/1986).

IF you want to play hard ball and make a point, issue a Grand Jury sub. for both the witness and the lawyer and question the lawyer about tampering with a witness.