Responding to Subpoenas for Medical Records

Medical, dental, and other healthcare professionals who receive subpoenas or court orders need to proceed with caution before releasing medical information to third parties. Just because your office has received a request from a law enforcement officer or an attorney with an official document doesn't necessarily mean that HIPAA and other patient privacy laws have been waived. Most importantly you need to carefully read the record request and communicate with your healthcare attorney prior to responding. Records requests often come in the form of a deposition notice. Despite the language of the notice, it may not be necessary for you or your records custodian to disrupt their day to appear at an actual deposition. Communication with your attorney and the attorney making the request can clarify what you need to do in a given situation.

The following are some of the common types of medical, dental or other healthcare records requests that a healthcare provider might receive, along with some guidelines on to how to handle each.

Court Orders – It's important to recognize that not all subpoenas originate from the Colorado courts. However, healthcare providers must comply with requests for protected medical information from the courts. If you receive a Colorado court order, you must be careful not to disclose any information that is not specifically demanded in the document. You are not required to disclose to the patient that you have been ordered to release his or her medical records. However, this kind of notification is not prohibited.

Criminal Subpoenas and Search Warrants – Investigative subpoenas and warrants create a number of legal difficulties for healthcare providers. If you are approached with either of these types of documents by law enforcement, you should immediately contact your attorney before complying.

Civil Subpoenas, Deposition Notices and Discovery Requests – Oftentimes attorneys will submit subpoenas, deposition notices or other discovery requests without an accompanying Colorado court order. Not all subpoenas are requests from healthcare providers, and outside of the medical community, these types of requests often stand by themselves. However, as a healthcare provider, you should first verify that the court in which the matter is being brought is one of competent jurisdiction.

In addition, the subpoena, deposition notice or other discovery request should be signed by one of the party's attorneys and notarized. When you receive the subpoena, notice or request, before responding to it, you should notify the patient to inform him or her of the request. Before releasing any records, you should be satisfied that your patient is aware of the subpoena or notice. Often in civil lawsuits, a the patients' attorney wishes to object to disclosing certain records. By notifying the patient, you give the patient's attorney time to make their objections to the court and can help protect yourself against claims against you for improper disclosure.

Remember, the key to avoid legal and ethical complications is to proceed with caution. Most situations involving requests for medical records allow time to produce the requested information. Unless a Colorado court has issued an order, it's reasonable to ask for additional time before complying if necessary. If you have any doubts as to whether or not you should comply with the subpoena, warrant, or discovery request, seek the counsel of an experienced Colorado attorney.

The above information is not intended as legal advice and is provided merely as general information and should not be relied upon as specific legal advice for your situation.  Before taking any action you should contact an experienced Colorado healthcare attorney such as Philip M. Bluestein.  Mr. Bluestein can be contacted directly via e-mail (pmblue@bluesteinlaw.com) or telephone at (720) 420-1777.