In answer to the question can medical records be subpoenaed; the answer is yes because every type of record can be subpoenaed. Possibly a more relevant question would be “how should healthcare providers respond to a subpoena for medical records”?
In most states, there are three types of subpoenas – a “witness subpoena” that requires an entity to appear in court to give evidence, a “deposition subpoena” that requires an entity to provide copies of records and/or attend a deposition hearing, and a “subpoena duces tecum” that requires an entity to provide copies of records and/or attend a court hearing.
All three types of subpoenas can be used to subpoena medical records or require a healthcare provider to answer questions/testify about a medical record. Although are not exclusive to any particular type of case, a witness subpoena will most likely be used in a legal action where both a patient and a healthcare provider are the parties in a case (i.e., a medical negligence claim).
The other two types of subpoenas will most commonly involve cases in which the healthcare provider is not a party in a civil or criminal action (i.e., an injury compensation claim), but the patient´s medical records are required to support discovery and/or resolve the action. In such cases, it is important to be aware can medical records be subpoenaed in compliance with HIPAA.
What HIPAA Says about Medical Records being Subpoenaed
The relevant parts of HIPAA relating to medical records being subpoenaed can be found in §164.512 of the Privacy Rule – “[Permissible] uses and disclosures for which an authorization [from the patient] or opportunity to agree or object is not required” – specifically the section relating to disclosures for judicial and administrative proceedings (Section C). This section states that healthcare providers can disclose PHI in response to a subpoena provided that:
- Only PHI expressly requested by the subpoena is disclosed and de-identified information could not reasonably have been used.
- The information requested is relevant to a legitimate proceeding and the request is specific and limited in scope.
- The subject of the PHI has been informed about the subpoena or reasonable efforts have been made to notify the individual.
- An objection has not been filed by the subject of the PHI and the time to file an objection has elapsed.
- Any PHI disclosed in response to a subpoena is not used for any purpose other than the purpose for which it was requested.
- The party seeking the disclosure has put in place or requested a protective order to prevent further disclosures.
- Any PHI disclosed in response to the subpoena for medical records will be returned or disposed of at the end of the proceedings for which they were requested.
It is important to be aware that the provisions of Section C do not supersede other provisions of the Privacy Rule. Consequently, it is still necessary to obtain an authorization before disclosing psychotherapy notes or substance abuse disorder medical records, the Minimum Necessary Standard still applies, and Covered Entities have to comply with the provisions of any state laws that pre-empt HIPAA when more stringent privacy protections exist.
Responding to a Subpoena for Medical Records
There are different ways to respond to a subpoena for medical records depending on the type of subpoena (witness, deposition, or duces tecum) and the subpoena issuer. It is important to respond correctly when medical records are subpoenaed because incorrect responses can result in HIPAA violations. For this reason, healthcare providers and administrators should obtain legal advice to find out can medical records be subpoenaed in the specific circumstances of each subpoena.
The significance of the subpoena issuer is that it is not possible to object to a court order, a subpoena signed by a judge, magistrate, or administrative tribunal, or a grand jury subpoena. In such cases, it is necessary to comply with the subpoena for medical records and respond by disclosing the PHI expressly requested by the subpoena – notwithstanding that the content of the subpoena should cover the Privacy Rule provisions listed above (i.e., return or disposal of PHI, etc.).
If a subpoena is signed by a court clerk or attorney, additional assurances may be required by HIPAA. For example, a subpoena requesting medical records relating to substance abuse disorder medical records is invalid unless it is accompanied by a signed court order authorizing the disclosure. Similarly, if patient authorization is required to respond to a subpoena, healthcare providers should use their own authorization form rather than a waiver sent with the subpoena by an attorney.
Objecting to a Subpoena for Medical Records
Healthcare providers can object to a subpoena for medical records when it has been signed by a court clerk or attorney for a variety of reasons. These include (but are not limited to):
- The subpoena does not allow the healthcare provider sufficient time to collate the information requested.
- The subpoena requires the disclosure of PHI requiring an authorization and it has not been possible to obtain an authorization from the patient.
- The subpoena imposes an undue burden on the healthcare provider – typically when the PHI of multiple patients is requested for a class action.
- The subpoena is unreasonable or oppressive, or it is procedurally defective (i.e., no protective order has been requested to prevent further disclosures).
Usually there is a time period for filing an objection to a subpoena, and this can vary according to where the subpoena is issued. Similarly, there may be other reasons for objecting to a subpoena for medical records depending on state law. Consequently, expert and specialist legal advice is needed for the specific circumstances of each subpoena, and healthcare providers and administrators should always obtain legal advice before responding to a subpoena for medical records.
Can Medical Records be Subpoenaed? FAQs
Can courts subpoena medical records?
Yes, but as mentioned above, it is important to establish whether a court-issued subpoena is signed by a judge or a court clerk on behalf of an attorney as this affects the right to object to a subpoena for medical records.
Can an attorney subpoena medical records?
In most states, an attorney can subpoena medical records. However, in some states medical records obtained by an attorney via a deposition subpoena can only be used during the discovery process and are not admissible as evidence in court (also see the next FAQ).
Can a judge subpoena medical records?
Judges can subpoena medical records at any stage of proceedings. They can also subpoena medical records previously subpoenaed by an attorney if the medical records have been obtained via a deposition subpoena and are not admissible in court.
How far back can medical records be subpoenaed?
This depends on the purpose of the subpoena and the state in which the subpoena was issued. This is because statutes of limitations exist on certain legal proceedings (i.e., you cannot file a personal injury claim after x years), and because state-mandated retention periods differ from state-to-state.
What is a subpoena duces tecum for healthcare records?
A subpoena duces tecum for healthcare records is a court order requiring a healthcare provider to produce the requested medical records at a deposition or court hearing. Usually, the court order allows the healthcare provider to produce the medical records remotely without an in-person appearance being necessary.
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