Motions to Quash Subpoenas for Medical Records
Brien Roche
In the course of personal injury litigation there frequently arise instances where defense counsel has a service company obtain the plaintiff’s medical records. Sometimes these service companies canvass. What that means is that they issue subpoenas to all area hospitals requesting any and all records of the plaintiff. Whether they are doing it in this particular case or not, doesn’t change the fact that they typically are not authorized to receive any records. The records are confidential. There needs to be some mechanism for establishing that the service company is first authorized to obtain the records. Next there needs to be something established that the service company will in fact maintain the confidentiality of the records.
With most of the subpoenas, neither of those issues are addressed.
What I tend to do is to file a Motion to Quash the Subpoena. What follows is a form motion for such purpose.
MOTION TO QUASH SUBPOENAS
COMES NOW the plaintiff, ________________, by counsel and moves this Court to quash _____ (__) different subpoenas issued to healthcare providers of the plaintiff and in support thereof refers the Court to the accompanying Memorandum of Points and Authorities:
MEMORANDUM OF POINTS AND AUTHORITIES
I. BACKGROUND.
1. This is an auto crash case wherein _____________________________. The resulting crash caused serious personal injury to the plaintiff. The plaintiff was transported by ambulance to ______________________. Thereafter the plaintiff was treated by _____________________________.
II. THE FORM OF THE SUBPOENAS.
2. Attached hereto as Tab 1 are the cover letter and _____ (__) subpoenas mailed to Plaintiff’s Counsel and received by Plaintiff’s Counsel on or about _____________. All of these pages are numbered by Counsel in the lower right-hand corner. The opening paragraph of page 1 states that _________, which is the entity authoring the letter, had been retained by Defense Counsel to “obtain” records of the plaintiff. The last paragraph in bolded print on page 1 identifies __________ as being a canvassing company that apparently issues multiple subpoenas to multiple potential healthcare providers, regardless of whether there is any evidence of that provider ever having treated the plaintiff. As indicated on page 3 of Tab 1, the medical canvassing options that _________ offers fall into three (3) different categories with the gold canvassing consisting of subpoenas being issued to as many as ten (10) hospitals, twelve (12) pharmacies, regardless of whether the provider has any relationship to the plaintiff.
3. Attached as Tab 2 is the envelope that Tab 1 arrived in at the office of Plaintiff’s Counsel. As can be seen in the upper-right corner, the envelope was mailed on ___________ by ____________ from their office in _________________, _______.
4. The subpoena is not signed by Defense Counsel. The purported signature of Defense Counsel is simply a stamp. That can be seen by looking at pages 7, 10, 13, 16, 19, 22, 25 and 28. Rule 4:9.A(a)(2) requires that the Subpoena Duces Tecum be signed by Counsel. The logic of that requirement is that the signature of Counsel increases the likelihood that an attorney will actually review the document to confirm compliance with the law before it is issued. The fact that the subpoena was dated for ___________ as seen in the Certificate of Service and also mailed by ___________ from _______ on that same day as seen in Tab 2 suggests that there was no attorney involvement in the issuance of this subpoena. In the absence of a valid subpoena, healthcare entities have no duty to respond. Virginia Code § 32.1-127.1:03.H.3.
III. THE SUBPOENAS VIOLATE FEDERAL AND STATE LAW AS TO PRIVACY OF HEALTH INFORMATION.
5. As seen in Tab 1, page 1, ___________ is the one who will “obtain” the records that are the subject of the subpoenas. On pages 6, 12, 18 and 24 of Tab 1, ____________ expressly tells each provider that they may comply with the subpoena by “…providing legible copies of the items to be produced to ________________ in care of ___________, __________________, __________.” This is the address of __________ as reflected on page 1 of Tab 1 and also as reflected on Tab 2. Defense Counsel and ____________ are requesting that the healthcare providers provide these confidential health records of the plaintiff to an entity that is under no specified obligation to maintain confidentiality. Nowhere within the subpoenas or any of the documents provided by ___________ is there any statement of what _________ is other than a “canvassing” company, what their relationship is to defense counsel, what they will do with the health information upon receipt, who will have access to it and what its internal rules are as far as maintaining confidentiality of these records.
6. 45 C.F.R. 164.512(e) (Tab 3) does allow for the disclosure of protected health information in response to a subpoena if the healthcare provider receives satisfactory assurance from the party seeking the information that the individual who is the subject of the protected health information (the plaintiff in this case) has been given notice of this request and of his right to raise objection to such. Whether there has been compliance with that requirement is muddied by the fact that the notice is given by _________ who is not a party and on page 5 of Tab 1, the notice says, “The attached document means that ____________ has either asked the court to issue a subpoena or a subpoena has been issued by the other party’s attorney to your doctor…” Defense Counsel has not asked the Court to issue a subpoena. This is an attorney-issued subpoena and the subpoena was not issued by the opposing party.
7. In addition there has been non-compliance with the pertinent ____ in that:
a. Virginia Code § 32.1-127.1:03.A states that no healthcare entity may disclose an individual’s health records except where permitted or required by law. Through these subpoenas, healthcare providers are being requested to produce records to _________ which is nowhere identified as being a healthcare entity or otherwise authorized to receive these records.
b. Virginia Code § 32.1-127.1:03.E states that healthcare records can be made available in compliance with the HIPAA statute, 42 U.S.C. 1320d and the Federal Hitech Act. The plaintiff has not authorized the disclosure of these records to ____________. There is nothing within Tab 1 that indicates what the relationship is between ___________, the defendant and the healthcare providers other than ____________ being the entity that will “obtain” the records. The HIPAA privacy rule requires that if ____________ is a covered entity it must provide notice of its privacy practice 45 C.F.R. § 164.520(a) and (b) (Tab 4). It must be determined whether the entity receiving the information is a covered entity as defined in 45 CFR 160.103. They appear to be a healthcare clearinghouse in that they are a value added network (one that sends information)that facilitates the processing of health information. The entity seeking the information in this case has not provided their privacy policy. Therefore the subpoena is defective. The federal privacy rule in this instance preempts any state statute or rule. 45 C.F.R. § 160.203 (Tab 5). The whole purpose of the regulation is to provide some security to the health information being divulged.
8. As such this subpoena is defective in that nothing identifies __________ as to what their role is other than “obtaining” the records, what they will do with the records upon receipt, who will have access to the records and what they will do with the records upon dispatch to whoever ___________ may send them to.
WHEREFORE these premises considered it is requested that this Motion to Quash be granted.
GOOD FAITH CERTIFICATE
Prior to the filing of this Motion, the undersigned sent an email to opposing counsel stating his position on the subpoena in question and proposing that as to the plaintiff’s treaters, the plaintiff would provide an authorization to Defense Counsel to obtain these records.
Motions Quash Subpoenas Medical-Contact Us
Call, or contact us for a free consult. Also for more info on medical records see the Wikipedia pages. Also see the post on this site dealing with medical records issues.