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            A Subpoena for medical records is an order commanding a healthcare provider to appear, give testimony, and bring all the documents described in the subpoena.  Subpoenas are used to obtain documents in pretrial discovery and for testimony at trial.

            Valid subpoenas generally include the name of the court; the names of the plaintiff and the defendant; the date, time and place of the appearance being requested; the specific documents requested; the name and telephone number of the attorney who requested the subpoena; and witness and mileage fees.  Subpoenas are usually served by an authorized person such as a sheriff or marshal.  In some states, subpoenas can be served by mail.

            When healthcare providers are served with subpoenas for medical records, it is often unclear if any or all of the records should be released.  Faced with the penalty of contempt of court, many physicians are tempted to release all of the medical records requested by a subpoena.  However, some physicians have learned the hard way that this may not be the best way to approach a subpoena. There are many exceptions to the rule when it comes to complying with a subpoena.  The healthcare provider may need to determine the validity of the subpoena being served.  For example, has the subpoena been served upon the correct provider?  Does it reference the correct patient?  Is the request made for the correct time period?  In addition, healthcare providers are not expected to comply with subpoenas that are served late, subpoenas that ask for records that are not in the provider's possession, or ask for records that are so old or so extensive that it would be impossible to comply within the date of the subpoena.  In these cases the court may find that the subpoena is unreasonable. 

            A physician should never ignore a subpoena.  Rather, the physician should inform the patient and/or a legal representative of the patient.  This way, the patient is given the opportunity to file a motion to quash the subpoena.  A court might find that the subpoena is too broad, and either limit the subpoena or quash it altogether. 

            When a subpoena is limited by the court, the patient must sign a release indicating the release of specific medical records.  As a rule, many states require a court order for the release of psychiatric records.  Some states have also enacted legislation to protect the confidentiality of HIV/AIDS related information.  In these states, written authorization by the patient is necessary for the release of medical records containing HIV/AIDS information. 

            In Massachusetts, the law specifically states that no physician or health care provider can disclose the results of an HIV test to anyone other than the patient without the patient's written consent.  Further, healthcare providers cannot disclose the identity of a patient who has been tested for HIV without the patient's written consent.  Massachusetts law says "...such written  consent form shall state the purpose for which the information is being requested and shall be distinguished from written consent for the release of any other medical information..." . (MGL section 70F)

            In 1989, a New York appellate court upheld a ruling that a physician was liable for punitive damages when that physician supplied medical records containing HIV positive information while complying with a Pennsylvania Workmen's Compensation Bureau subpoena. 

            The plaintiff, who tested positive for HIV, went to see his New York physician complaining of ear and sinus problems.  While there, he disclosed his HIV status to his physician.  The plaintiff was a flight attendant and filed a workers' compensation claim against his employer stating that his ear and sinus problems were directly related to his employment.

            The Pennsylvania Bureau of Workmens' Compensation served the plaintiff's physician with a subpoena.  Along with the subpoena, the attorney for the employer provided releases of medical information.  The physician released the medical records to the employer's attorney.  The records included information on the patient's HIV status. 

            The patient filed suit against the physician claiming breach of confidentiality and the appeals court agreed.  The court found that the release was not specific enough to release medical records containing HIV information.  Additionally, New York law states that HIV records cannot be released pursuant to a subpoena.  In New York a court order must be issued for the release of HIV related medical records.  The court awarded punitive damages in order to enforce these laws. 

            While the physician-patient privilege regarding the confidentiality of medical records is recognized by most states, this privilege is not absolute.  In some instances, courts have ruled that a patient waives the right to confidentiality in medical records with the filing of a law suit. 

            In the 1993 decision Caston v. Centers for Psychotherapy, Inc., the Louisiana Fourth Circuit Court of Appeal held that a woman's medical records were discoverable in her attempt to get custody of her child.  During divorce and child custody proceedings, the husband's attorney served the Centers for Psychotherapy, Inc. with a subpoena to release the wife's medical records to him.  The wife filed suit alleging that her privacy had been violated.  Motion for Summary Judgment was denied, and the case was appealed.

            The appeal court found that the wife waived her privilege to confidentiality in her medical records when she filed for custody.  The appeal court also noted that the Louisiana law on joint custody requires the parents' medical records to evaluate their mental and physical well-being. 

            It is important to remember that even though a patient has waived his or her privilege to confidentiality by bringing suit, those involved in the suit do not have absolute access to the healthcare provider who treated the patient. 

            Healthcare providers served with subpoenas for medical records may face contempt of court for non-compliance with the subpoena.  On the other hand, they may be held liable for breach of physician-patient confidentiality for releasing too much.  The best rule of thumb when a healthcare provider is served with a subpoena is to notify the patient and, when applicable, the patient's attorney.  Providers should also try to obtain written releases from the patient for the specific information being released. 

Medical Records Subpoenas

by Attorney Frank E. Reardon

July 1994

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