Responding to Subpoenas for Health Department Records

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Health Law Bulletin No. 82 September 2005Question 4. May I disclose confidentialinformation in response to a subpoenaalone?Unless other conditions are satisfied, a subpoenais usually not sufficient to authorize disclosure ofconfidential information. Most confidentiality laws—including those dealing with medical information—contain some provision permitting disclosure ofconfidential information in legal proceedings. Someallow disclosure in response to a subpoena, but mostimpose stricter conditions, such as entry of an orderby a judge or prior notification of the individual whois the subject of the records. If you receive asubpoena for confidential information, you mustconsider the particular statute or regulation governingthe information and determine the conditions underwhich you may disclose it. Questions 26 through 32discuss those conditions.An attorney who issues a subpoena shouldlikewise be wary of examining confidentialinformation on the strength of the subpoena alone. Insome circumstances, an attorney who reviewsconfidential information without appropriateauthorization may be subject to sanctions or evencivil liability. 6 For this reason, if they anticipate thatrecords contain confidential information, someattorneys (particularly in criminal cases) prefer toapply directly to a judge for an order for productionof records rather than issue a subpoena themselves. 76. See Bass v. Sides, 120 N.C. App. 485, 462 S.E.2d838 (1995) (before obtaining judge’s permission, plaintiff’sattorney reviewed confidential medical records ofdefendant that records custodian had sealed and mailed toclerk of court in response to subpoena; judge orderedplaintiff’s attorney to pay defendant’s attorney fees,totaling approximately $7,000, and prohibited plaintifffrom using records at trial); Susan S. v. Israels, 67 Cal.Rptr. 2d 42 (Cal. Ct. App. 1997) (attorney read anddisseminated patient’s confidential mental health recordsthat treatment facility had mistakenly sent directly to him inresponse to subpoena; court allowed patient’s suit againstattorney for violation of state constitutional right ofprivacy); North Carolina Rules of Professional Conduct,Ethics Op. 252 (North Carolina State Bar Ethics Comm.,July 1997) (attorneys should refrain from reviewingconfidential materials inadvertently sent to them byopposing party).7. In criminal cases, such an application by a criminaldefendant has come to be known as a Ritchie motion,named after a U.S. Supreme Court decision authorizingcriminal defendants to obtain access to potentiallyexculpatory information, even if confidential, in the handsResponding to such an order is discussed further inQuestion 25, below.Question 5. What happens if I discloseconfidential information when notpermissible?Several adverse consequences may follow. Youor your health department could be subject to afederal investigation and possibly civil penalties orcriminal prosecution, depending on the circumstancessurrounding the disclosure. 8 You could be subject tocriminal prosecution under state law for disclosingconfidential information. For example, improperdisclosure of information identifying a person withcertain communicable diseases is a misdemeanor. 9As an employee of the health department, you couldalso be subject to discipline (including discharge) forfailing to comply with confidentiality laws or healthdepartment confidentiality policies. In rare cases, theperson whose privacy has been compromised maybring a private lawsuit requesting money damages orof a third person. See Pennsylvania v. Ritchie, 480 U.S. 39(1987); 1 JOHN RUBIN, THOMASIN HUGHES & JANINEFODOR, NORTH CAROLINA DEFENDER MANUAL § 4.7A, at35–38 (May 1998) (describing procedure to obtain courtorder for production of records); see also In re AlbemarleMental Health Center, 42 N.C. App. 292, 256 S.E.2d 818(1979) (in certain circumstances, prosecutor may obtaincourt order for production of records held by custodian ofrecords).8. 42 U.S.C. §§ 1320(d)(5), (6) (outlining civil andcriminal penalties for violations of the administrativesimplification provisions of the Health InsurancePortability and Accountability Act of 1996 [HIPAA]); 70Fed. Reg. 20,224 (April 18, 2005) (interim final regulationgoverning imposition of civil monetary penalties forviolations of the HIPAA Privacy Rule); Scope of CriminalEnforcement Under 42 U.S.C 1320d-6, Mem. Op. forGeneral Counsel, U.S. Dept. of Health and Human Servicesand Senior Counsel to the Deputy Attorney General, U.S.Dept. of Justice (available at www.usdoj.gov/olc/2005opinions.htm) (interpreting scope of HIPAA’scriminal penalties).9. See G.S. 130A-143 (establishing permissibledisclosures of information identifying persons with certaincommunicable diseases); 130A-25 (making violations ofChapter 130A a misdemeanor); 14-3(a) (classifying anyunclassified misdemeanors as Class 1 misdemeanors).4
September 2005 Health Law Bulletin No. 82other relief against you, the health department, or thecounty. 10Question 6. What are permissibleresponses to a subpoena?Ordinarily, you must respond to a subpoena insome fashion even if you believe that the subpoenaalone does not permit you to disclose the confidentialinformation it seeks. You have several possibleoptions.Before the proceeding commences, you maycontest the subpoena—that is, you may challengeit—if you believe it is objectionable. You may do thisby making a motion to quash or modify, which asksthe court to invalidate or at least limit the subpoena.In the case of a subpoena to attend a deposition (or toproduce records when no proceeding is scheduled),you may submit written objections to the party whoissued the subpoena in lieu of filing a motion with thecourt (see Question 23, below). To contest asubpoena, ordinarily you will need to consult with anattorney.In some circumstances, you may be able to makealternate arrangements before the proceedingcommences with the party who issued the subpoena,as he or she has the authority to excuse you from thesubpoena’s requirements. 11 For example, a party maybe willing to excuse you from appearing if youprovide the requested records in advance. You mayagree to such an arrangement if the records are notconfidential, but ordinarily you may not if they areconfidential (see Question 21, below). If you receivea subpoena for documents, you also may be able tomail the records to the court ahead of time and avoidappearing; but, if the records are confidential, youmay be unable to use this procedure (see Questions20 and 30, below).Often the easiest course is to appear at theproceeding as directed by the subpoena. It isimportant, however, to understand the limits on youractions when the subpoena seeks confidentialinformation, either through your testimony or fromrecords. If the patient or other subject of confidentialinformation has not given you proper authorization to10. See, e.g., Jennings v. Univ. of North Carolina atChapel Hill, 340 F. Supp. 2d 666, 678 (M.D.N.C. 2004)(summarizing North Carolina law related to the commonlaw tort of invasion of privacy).11. See generally G.S. 8-63 (witness summoned toappear in court may be excused by party at whose instancewitness was summoned).disclose the information, you may appear at theproceeding but ordinarily may not disclose theinformation without an order from the judge. Theoption of appearing at the proceeding and awaitingfurther direction by the judge is discussed inQuestion 29, below.Question 7. Are there any circumstancesin which one does not have to respond toa subpoena?Very few. A subpoena is a form of court order,commanding you to appear at the time and placeindicated with the requested materials. If you ignore asubpoena and a judge later finds that it was validlyissued, you could be held in contempt. 12 In essence, afinding of “contempt” signifies that you purposelydisobeyed a court order, such as a subpoena,exposing you to a fine or, in extreme cases,imprisonment. Only in the rarest of circumstanceswould it be safe for you to disregard a subpoena (seeQuestion 14, below, on subpoenas for out-of-stateproceedings).Mechanics of SubpoenasQuestion 8. Who can issue a subpoena?Any North Carolina judicial official may issue asubpoena for a case in state court. Judges,magistrates, and clerks of court all are judicialofficials. An attorney for a party to the case also mayissue a subpoena, and often the subpoena you receivewill be from an attorney. Under the 2003 changes toRule 45 of the North Carolina Rules of CivilProcedure, a party to a case who is not represented bycounsel may no longer issue a subpoena; he or shemust apply to a judicial official, such as the clerk ofcourt. 13Question 9. Does a judicial official have toreview a subpoena before it is issued byan attorney?No. An attorney may issue a subpoena withoutobtaining permission from a judicial official. But, as12. See N.C. R. CIV. P. 45(e); see also G.S. 8-63(providing for monetary penalties for violation ofsubpoena).13. See N.C. R. CIV. P. 45(a)(4).5
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Responding to Subpoenas for Health Department Records

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