Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

In the 2013 case of Smith v. Smith, a husband and wife were in the middle of a contentious divorce proceeding.  In anticipation of the Trial, counsel for Mrs. Smith served a Trial Subpoena on a major hospital requesting all of the medical records from her soon-to-be ex-husband’s treatment at the facility.  The Trial Subpoena was served just over a week before the Trial was scheduled to begin.  The Keeper of Records for this facility needed to make sure this subpoena was HIPAA compliant and requested a release and authorization from Mr. Smith.  Counsel for Mr. Smith informed the Keeper of Records that his client would not provide a release as he did not want the records to be produced as he felt they were not relevant to the proceeding and did not want his privacy violated by his soon-to-be ex-wife.  As the trial subpoena was not HIPAA compliant and Mr. Smith would not allow his permission for the records to be produced, the Keeper of Records found himself in a complicated situation.


Counsel for the hospital spoke with the attorneys for both Mr. and Mrs. Smith to see if there could be an agreement made regarding production of the records.  Counsel for Mrs. Smith still wanted all the records produced, and counsel for Mr. Smith would not agree to any of the records to be produced.  Counsel for the hospital, therefore, filed a Motion for a Protective Order with the Court.  The Judge would not agree to review the Motion as it was too close to Trial and therefore ordered the Keeper of Records to appear in Court.  Counsel for the Keeper of Records asked the Judge if it would be acceptable that he, as the attorney for the hospital, appeared in Court with the certified records instead of making the Keeper of Records miss a day of work to appear in Court.  The Judge would not agree to this and said the situation would have to be figured out at the start of Trial.


The Keeper of Records followed the Judge’s instruction and appeared in Court.  Counsel for Mr. and Mrs. Smith could still not agree on a compromise regarding the records at the start of Trial, so the Keeper of Records had to wait for the Judge to arrive and begin the proceedings.  The issue of the records was not decided until late in the afternoon, meaning the Keeper of Records missed almost an entire day of work to sit and wait in the Courthouse.


In most cases, the keeper of records does not need to appear at Trial in these matters because the only knowledge they typically have of the patient or his or her medical records is that the records are complete.  A keeper of records will not have any direct interaction with the patients prior to receiving a subpoena for records.  However, there are cases, such as in Smith v. Smith, where the keeper of records will need to appear because the patient will not provide a release for his records and the subpoena itself is not HIPAA compliant.

Keeper of the Records Ordered to Court

by Attorney Samuel S. Reidy

August 2013