Responding to Subpoenas for Health Department Records

Health Law Bulletin No. 82 September 2005relevant to the proceeding, the judge may refuse toallow disclosure or may narrow the information thatmust be disclosed. 54 Once the judge orders disclosureof the records, the custodian may safely do so. 55 Thecustodian should consider bringing a copy of anyapplicable laws to court to assist the attorneys andcourt officials.The option of appearing at the proceeding andenlisting the judge’s assistance in determining theextent of disclosure is not feasible when you havebeen subpoenaed to a deposition (or to producerecords at a person’s office) because a judge willalmost never be present. If you believe the recordsare confidential and cannot be disclosed without theorder of a judge, contact your attorney aboutcontesting the subpoena. See Question 23, above, forcontesting a subpoena for a deposition or to producerecords.Question 30. Is there any way that I cancomply with a subpoena for confidentialrecords without appearing at theproceeding?As mentioned above in Question 20, there is a“mail-in” procedure available for “hospital medicalrecords.” Many health departments have relied onthis procedure to avoid the time and expenseassociated with appearing at court proceedings. Forrecords subject to the physician-patient privilege,health departments must proceed carefully to ensurethat the records are not disclosed without the courtorder required by that law.The mail-in procedure followed by most healthdepartments is:• seal the records in an envelope,• include an affidavit stating that the copiesare true and correct copies and that the54. See State v. Adams, 103 N.C. App. 158, 161, 404S.E.2d 708, 710 (1991) (upholding trial court’s orderprohibiting party from examining medical records or crossexaminingcustodian of those records about their content).55. The custodian is not required to appeal the judge’sruling, even if it appears to be wrong. The right to appealan order requiring compliance with a subpoena is beyondthe scope of this bulletin. See generally 9A CHARLES A.WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE ANDPROCEDURE CIVIL § 2466, at 87–91 (2d ed. 1995). If youwant to contest a judge’s ruling requiring disclosure,consult an attorney.records were made and kept in the regularcourse of business,• include a letter or memo outside the sealedenvelope indicating the case for which thedocuments have been requested, and statingclearly that the documents are privileged andshould not be disclosed without a courtorder, and• deliver the records to the clerk of court (andobtain a receipt) or send them by registeredmail or certified mail (return receiptrequested).This mail-in procedure is still allowed understate law but, if the requested records are subject tothe HIPAA Privacy Rule, the health department mustnow comply with additional administrativerequirements before mailing the records to thecourt. 56The Privacy Rule requires either (a) a good faithattempt to notify the patient or (b) a qualifiedprotective order issued or approved by a court. 57 In56. The HIPAA Privacy Rule applies to uses anddisclosures of identifiable health information. The mail-inprocedure authorized in North Carolina’s law implicatestwo possible “disclosures” under the Privacy Rule. First,sending the records to the clerk of court—even in a sealedenvelope—may fit within HIPAA’s broad definition ofdisclosure. See 45 C.F.R. 160.103 (defining the term“disclosure” as the release, transfer, provision of access to,or divulging in any other manner of information outside theentity holding the information). Second, North Carolinalaw may allow the parties to the case to review the recordssent to the clerk before the court has ordered disclosure.See N.C. R. CIV. P. 45(c)(2) (rule states that hospitalmedical records mailed to the court are not open toinspection except to parties to case); but see Bass v. Sides,120 N.C. App. 485, 462 S.E.2d 838 (1995) (beforeobtaining judge’s permission, plaintiff’s attorney reviewedconfidential medical records of defendant that recordscustodian had sealed and mailed to court clerk in responseto subpoena; judge ordered plaintiff’s attorney to paydefendant’s attorney fees, totaling approximately $7,000,and prohibited plaintiff from using records at trial); 1 JOANG. BRANNON & JAN S. SIMMONS, NORTH CAROLINA CLERKOF SUPERIOR COURT PROCEDURES MANUAL 52.7–52.8(Sept. 2003) (cautioning clerks about releasing sealedevidence without further order of a judge). Because of thesepotential disclosures, the health department must alsocomply with the subpoena procedures in the HIPAAPrivacy Rule, discussed above, before following this “mailin”procedure.57. See 45 C.F.R. § 164.512(e).16