Doctors receive subpoenas all the time. Lawyers send subpoenas for medical records when their client has been injured in a fender-bender; is seeking money from worker’s compensation; and when suing a doctor for negligence. In each of these cases, the lawyer is seeking the medical record to serve his client – (the patient).
What happens when a lawyer sends a subpoena for medical records when his client’s interests are adverse to the patient? This can create a pickle for the doctor. We are taught to comply with subpoenas. We are also taught to respect patient privacy.
In Byrne v. Avery Center for Ob-Gyn, Connecticut Supreme Court clarified a doctor’s obligations when faced with a certain type of subpoena. In 2004, ten years before this case was decided, Byrne learned she was pregnant. Soon thereafter, she notified Avery Center for Ob-Gyn not to release any medical information to the child’s father. Avery was no longer in a relationship with the father.
The Center received a subpoena from the child’s father and did release the records. HIPAA does not allow a private cause of action for violation of privacy. HIPAA allows the government to seek its own remedy. But, the Connecticut Supreme Court concluded Avery Center for Ob-Gyn failed to make an attempt to notify Byrne of the subpoena or seek guidance from the court on the disclosure.
The plaintiff argued the father “used that personal information for a campaign of harm, ridicule, embarrassment and extortion.”
The state Supreme Court agreed that a violation of HIPAA regulations may constitute a violation of generally accepted standards of care, and remanded the case back to the lower court for trial. So, the case lives on.
Missouri, North Carolina, and West Virginia have issued similar rulings in the past.
WTF?
Here’s what happened. The subpoena Avery Center for Ob-Gyn received was signed by a lawyer. It was NOT signed by a judge. There are judge signed subpoenas, which have the effect of a court order. But, a lawyer-signed subpoena is not same as a judge-signed subpoena.
Department of Health and Human Services notes:
A covered health care provider or health plan may disclose protected health information required by a court order, including the order of an administrative tribunal. However, the provider or plan may only disclose the information specifically described in the order.
A subpoena issued by someone other than a judge, such as a court clerk or an attorney in a case, is different from a court order. A covered provider or plan may disclose information to a party issuing a subpoena only if the notification requirements of the Privacy Rule are met. Before the covered entity may respond to the subpoena, the Rule requires that it receive evidence that reasonable efforts were made to either:
– notify the person who is the subject of the information about the request, so the person has a chance to object to the disclosure, or to
– seek a qualified protective order for the information from the court.
Had Avery Center for Ob-Gyn notified its patient, Ms. Byrne, about the subpoena, she would have had an opportunity to object. That could have sidestepped ten years of court headaches. This case is now remanded back to lower court. So, it’s still not over. Perhaps the case will be resolved before junior goes to college.
This case underlines the fact that doctors and their administrative staff do not understand the law. And the law is always changing when you are dealing with healthcare issues.
Before fulfilling any subpoena, you should get competent legal advice. Not from the lawyer who constructed your defined benefit retirement plan, but rather from an attorney who understands healthcare law.
It is understandable that you might not want to notify your professional liability company, because they might regard and count it as a “claim” on your legal history. Again, when you pay an attorney yourself, that attorney is only representing YOU and no one else. He/she cannot report that to your insurer without your permission. It is strictly lawyer/client privilege.
If he/she advises you to do something that does not work out, you can (and should) just sue them for legal malpractice later on.
My records were routinely subpoenaed by attorneys over foot/ankle/leg injury cases and of course our records were often demanded concerning worker’s compensation treatment history. For some reason, foot and ankle injuries are very common in our working society. My staff would never fulfill a subpoena without telling me about it first.
It would be absurd to count them as a claim on your liability history. These kinds of actions are just a response to the legal industry grinding on.
It is penny foolish to try to save on legal fees when you need a lawyer. You are probably not a lawyer. Neither am I.
Michael M. Rosenblatt, DPM