Can Medical Records be Subpoenaed?

Yes, medical records can be subpoenaed since all types of records may be subpoenaed. In such a case, what is the proper response of healthcare providers?

In almost all states, three types of subpoenas exist

  • a witness subpoena calls for the appearance of an entity in court to provide evidence
  • a deposition subpoena demands an entity to present copies of documents and/or be present during a deposition hearing
  • a subpoena duces tecum demands an entity to give copies of documents and/or be present during a court hearing

The three types of subpoenas may be utilized to subpoena health records or call for a healthcare company to reply to questions/give testimony concerning a medical record. Though not exclusive to any specific kind of case, a witness subpoena is employed in a legal case where a healthcare company and a patient are the parties in a case (such as, a medical negligence claim).

The last two types of subpoenas are most frequently used for cases wherein the healthcare company does not act as a party in a criminal or civil action (such as., an injury compensation claim). However, the patient´s health records are necessary to aid discovery and/or settle the action. In such instances, it is crucial to know that the subpoena of medical records must comply with HIPAA.

HIPAA and the Subpoena of Medical Records

§164.512 of the Privacy Rule states the terms of HIPAA associated with the subpoena of medical records. It is not required to get patient authorization for the [Permissible] uses and disclosures of medical records or for the chance to concur or object, in particular, Section C concerns disclosures for judicial and administrative proceedings. This section claims that healthcare companies can share PHI when responding to a subpoena so long as:

  • Only PHI specifically required by the subpoena is shared and de-identified data cannot reasonably have been utilized.
  • The data requested is pertinent to a legit proceeding and the request is precise and restricted in scope.
  • The subject of the PHI is sent a notification about the subpoena or good efforts have been exerted to alert the person.
  • The subject of the PHI does not file an objection and the filing period for the objection has passed.
  • Any PHI shared in reply to a subpoena isn’t employed for any purpose except the reason for which it was asked.
  • The party looking for the disclosure has set up or asked for a protective order to avoid more disclosures.
  • Any PHI shared in accordance with the subpoena for health records will be returned or discarded when the cases for which they were asked have ended.

It is crucial to take note that the conditions of Section C don’t supersede other conditions of the Privacy Rule. As a result, it is still required to get authorization prior to revealing substance abuse disorder health documents or psychotherapy notes. The Minimum Required Standard is still applicable, and Covered Entities must adhere to the terms of any state regulations that pre-empt HIPAA when more rigid privacy protections are used.