HIPAA and state privacy laws protect patients from the unlawful disclosure of their medical records. However, court-mandated orders may require physicians, and even aestheticians, to provide confidential information such as medical records for court use and other legal process.
So what do you do when a patient’s medical record is summoned in court? The first step is to understand whether the subpoena was issued by a state judge or an attorney. The former allows lawful disclosure while the latter requires extra steps to allow compliance while ensuring protecting against patient confidentiality laws. The next step would be to take the best measures to minimize your legal risk.
In this article, we help you navigate subpoenas and what to do when you receive one for your patients.
There are two types of subpoenas, a subpoena for documents and subpoena duces tecum, which requires the recipient to appear in court and deliver those documents directly as a qualified witness. In some cases, medical practitioners are asked to testify in court as an expert witness regarding their patient’s medical record.
A subpoena is a discovery request for documents. A subpoena for documents-only is the most common type of subpoena sent to a clinic or practice. These are typically used for personal injury cases and may either be delivered through mail or handed in person to you.
Here’s a three-step guide on how to handle subpoenas for medical documents:
Not all subpoenas are state-required. A subpoena can be sent over by a court clerk or an attorney, in which case you are not completely free from HIPAA policies. Additional requirements have to be met to ensure that you aren’t violating any of the policy laws.
Here’s what you can do in both circumstances:
Subpoenas that have been signed by an administrative tribunal, judge, or magistrate, or grand jury subpoena require disclosure. Make sure to check which information is being requested and disclose that, and nothing more. Sometimes a subpoena only requires information like date of appointment, meaning you don’t have to provide any other information than that.
The release of medical records following a subpoena from a state court isn’t considered a breach of confidentiality. With a court order, you don’t have to worry about the legal ramifications of disclosing your patient’s medical records.
The easiest way is to check the signatory on the form to confirm that it’s been signed by a judge and not a court clerk or an attorney. The judge’s name is typically listed in print next to the signature.
On the other hand, subpoenas signed by anyone aside from the ones above, including lawyers and court clerks need additional requirements.
Very specific situations compel physicians and aestheticians to respond to a subpoena and disclose the needed information.
Medical records can’t be disclosed unless one of the following conditions are met:
Next, pay attention to what information is being requested. Sometimes only a small part of the patient's medical record needs to be disclosed. Specially protected records such as mental health records and history of substance abuse need to be specifically required before disclosure.
For instance, if you receive a request for a patient record, release the general record except the specially protected records such as mental health, testing for AIDS and similar diseases, and drug/alcohol records. Even mentioning that these records exist is an HIPAA violation so be mindful when speaking to the requesting party.
Only release specially protected records when a court order has been signed specifically requesting that information or when a valid authorization from the patient authorizes the release of that information.
You don’t have to immediately disclose a subpoenaed record unless otherwise expressly required. Oftentimes, this will come with a date and the medical provider will need to comply within that date. Most states will require that you do not produce records earlier than the due date to allow the patient time to respond to the subpoena. If no date is listed, notify the patient and give them time to either sign an authorization or file an objection.
Additionally, make sure that the subpoena is valid and correct. Telling information includes:
Releasing medical records in violation of HIPAA and state laws can subject you to penalties and civil damages for breach of confidentiality. To minimize your risk, here are some things you could look into:
Subpoenas are a stressful affair but they don’t have to be impossible and daunting. When in doubt, always seek legal counsel to understand your full responsibilities in a court proceeding, and make sure to inform the patient that their information is being requested.
Aesthetic spas and cosmetic facilities may receive these requests from time to time, so it’s crucial to have an understanding of the confidentiality act and what to do with protected health information.