By Robert “Harrison” Gibbs
As a healthcare provider, you will likely receive a subpoena for a patient’s health record at some point. When issued by an attorney or agency, this request is called a subpoena duces tecum, Latin for “bring it with you.” This is a misnomer because you provide the records without appearing in court. Nevertheless, it is important to know when and how you must respond and when you do not, as well as the legal timeline for replying.
Federal and state laws protect a patient’s privacy by limiting when a practice may disclose patient records to a court, including pre-litigation discovery. Nothing prevents a patient or their attorney from requesting the patient’s own health records, except where the provider includes a note that release could prove harmful.
For a subpoena duces tecum from a third party, you must either disclose records pursuant to a court order or, after the requestor’s satisfactory assurances, the records will remain private. Virginia has simplified these satisfactory assurances under Va. Code § 32.1-127.1:03. Virginia law contains instructions to attach to the subpoena, and the notice headings must be in BOLDFACE CAPITAL LETTERS. The issuer sends the patient notice with a copy of the subpoena and explains the patient’s right to object with a “motion to quash” within 15 days of receipt. A court will determine whether the requesting party has shown good cause to compel disclosure, weighing the need for the information against the harm of releasing it. A provider may also file a motion to quash in limited situations.
The issuing party also must attach a notice to the provider with the subpoena directing the provider to hold the records for at least 15 days after receipt to give the patient time to file a motion to quash. The notice explains that the records should not be released until a second notice states that no motions were filed or that the motions are resolved or pending. If pending, the notice directs the provider to send the records to the court clerk “under seal” – i.e., put them in a plain envelope, tape it shut, and write “under seal” on the front.
The notices must contain verbatim the “magic words” in the statute – if not included with the subpoena, there is no legal obligation to respond. However, good form suggests contacting the issuer to explain their omission.
Furthermore, you may not release a patient’s records to the patient or a third party if a note in the chart says that in your professional judgment, release could harm the patient or others. The patient may request review by a comparable professional not involved in their care, who then reports to the court whether the record supports the note.
Finally, a Virginia provider may not have to disclose psychotherapy notes, which are comments and notes about conversations during a private counseling session. These do not include notes about medications, symptoms, diagnosis, prognosis, treatments or progress. You should only release psychotherapy notes with the patient’s written authorization, court order, or for public safety since they may contain the patient’s dark secrets. There is no reason an insurer or opposing attorney needs access to these confidences.
Subpoenas and record requests are frequent occurrences for most providers. Providers must be aware of their legal obligations to release or withhold records and the deadlines to respond. If you have questions regarding a request or subpoena, contacting an attorney to confirm your obligations is a smart first step.
Robert “Harrison” Gibbs is an attorney in Goodman Allen Donnelly’s Williamsburg office. His practice focuses on representing physicians and other healthcare providers with licensing, state and federal regulatory compliance, corporate documents, contracts and transactions, third-party payment, audits and fraud investigations, HIPAA, and facility certification. goodman.allen.com
