Risk Manager
When Records Are Subpoenaed
You must respond to a legal request, but that doesn't mean violating the rules of physician/patient confidentiality.

BY JEFFREY D. WEINSTOCK, ESQ.

 Receiving a subpoena or a request by an attorney for medical records is a fact of life for medical practices. Though you may view such a request as a sign that the patient is considering suing you or your practice for medical negligence, that's not necessarily the case. These records may be used in a workers comp hearing, by an insurance company in trying to recover for claims resulting from an auto accident, or in an action against another party.

This month, I'll discuss the proper way to respond when you're asked to provide patient information.

DEVELOP A RESPONSE POLICY

Although patients clearly have a right to their medical records, the way a request is delivered to you and the identity of the person requesting the information should determine how you respond. There are new federal regulations regarding the privacy of medical information, but your response to such requests is generally governed by state law, which differs from state to state.

Even when you receive a subpoena, you still must follow laws regarding patient privacy. Your attorney can help you set a policy for dealing with most typical requests. This will spare you from spending time and money on obtaining a legal opinion in every instance. If an unusual request arises, or if you have any questions about how to respond, you should play it safe and consult your attorney.

When a request for medical records comes directly from a patient or a patient's attorney, it's usually in the form of a letter, with the patient's written consent enclosed.

Just because an attorney represents your patient doesn't mean you can provide the records without the patient's consent. In fact, the patient's written consent should specifically state that the patient is authorizing you to release the records to the patient's attorney, rather than to the patient himself. If a signed consent form doesn't accompany the request, get written permission from the patient before releasing any records.

DEALING WITH SUBPOENAS

Sometimes, patients are involved in litigation involving nursing homes, assisted-living facilities or insurance companies. You may be asked to release records to one or more parties who are part of such a lawsuit.

These types of inquiries usually come in the form of a subpoena. In some states, filing certain types of lawsuits is in itself considered consent to release medical information relating to the subject of the lawsuit. But even if the patient's consent is implied, there may be restrictions on who can legally request and be provided with personal medical information. Subpoenas for medical information are often in a gray area of the law. It's best to contact your attorney if you believe you're being asked to disclose information that you feel should be kept private. Since you have a legal duty to respond to a subpoena, your attorney will ensure that your response is documented and that your best interests are protected.

YOU HAVE RIGHTS, TOO

Any party served with a legally valid subpoena does has an obligation to respond, but the mere appearance of a subpoena doesn't mean that a court has approved the release of information. Remember, there may be times when you'll be perfectly within your rights to object to a subpoena, citing the physician-patient privilege.

Jeffrey D. Weinstock, Esq. is the Assistant General Counsel of Cyber-Care, Inc. Based in Boynton Beach, Fla., Cyber-Care is a technology-assisted health management company. Risk Manager provides a general summary of legal issues and should not be construed as personal legal advice. Application of these principles varies according to individual situations.