One of the first things to determine is what are the served papers demanding documents. Are we talking about a subpoena, a court order, or something else?
The medical practice should carefully review the subpoena, court order or warrant to understand the specific request being made. The practice should also ensure that the document is legitimate by confirming its authenticity with legal counsel or the appropriate authorities if necessary. To this end, the medical practice should verify who signed the subpoena or court order.
There are differences in how medical practices should respond to subpoenas, court orders and warrants in criminal versus civil cases. The scope of information requested in criminal cases may be broader, as law enforcement agencies may seek medical records or information related to specific individuals under investigation.
In criminal cases, there may be additional privacy considerations, such as the sensitive nature of the information being requested and the potential impact on ongoing investigations or the defendant's rights. For example, it is still necessary to obtain patient authorization before disclosing psychotherapy notes or substance abuse disorder medical records.
In civil cases, the scope of information requested may be more limited and directly related to the issues being litigated.
A health care provider covered under HIPAA may share a patient’s protected health information if the practice receives a court order. However, the practice may only disclose the information expressly authorized by the order. As a general rule, the medical practice should only disclose information that is specifically requested and relevant to the case.
In the case of a subpoena issued by someone other than a judge, such as a court clerk or an attorney in a case, a medical practice may disclose information to the party issuing a subpoena only if the notification requirements of the Privacy Rule are met. Before responding to the subpoena, the practice should receive evidence that there were reasonable efforts to notify the person who is the subject of the information about the request, so the person has a chance to object to the disclosure or seek a qualified protective order for the information from the court.
The medical practice should document everything, including all communications, actions taken, and disclosures made in response to the subpoena, court order or warrant. If there are any ambiguities or uncertainties regarding the request, the medical practice should reach out to the requesting party to seek clarification before proceeding.
It is also important to adhere to any deadlines specified in the document for responding or producing the requested information. With a bustling medical practice, there is the risk that the front desk staff could forget about and ignore the demand for documents. It is also crucial that the medical practice provide the requested information or documents in the manner and format specified in the requesting document.