Purpose of Issuing a Subpoena for Medical Records in Arizona?

What is the purpose of issuing a subpoena for medical records in Arizona? In short, a subpoena is a way to enforce or compel the production of a document that someone may not want to give up.

Four Primary Sources that Can Issue Subpoenas for Medical Records

And as I’ve said in previous blogs, in Arizona, there are a few valid ways that someone can issue a subpoena for medical records. And obviously, if the patient consents to give up the medical record by the provider, if it’s issued from a grand jury in a criminal proceeding, or if it’s issued from a court or from a healthcare regulatory board.

Those are the four primary sources that can issue subpoenas for medical records. Now, let’s say you’re a healthcare provider, and you get a request for medical records for a patient from an attorney that doesn’t have the patient’s authorization.

A Subpoena Cannot be Contested

You don’t know this attorney, they’re not stating what the record is for, and there’s no subpoena. You don’t have to give them the record. If it’s accompanied by court order, by patient consent, by a board, or by a grand jury, then obviously, you have to provide the document no matter what your objection is. Now, there are some objections to requests for medical records from providers if they feel like there is danger, but you cannot give those objections if it’s through a subpoena. So, just to clarify if you get a request to produce a medical record.

Even if the subpoena is accompanied by a patient’s consent or authorization, there are some caveats that can be made by the healthcare provider if they believe giving up the record could put someone’s life in danger or safety issue with the patient involved in the record. However, none of those objections can be used if you’re given a subpoena. The point of the subpoena is to compel the production of a document that may not necessarily be given up freely if it didn’t have the subpoena attached to it. Pretty simple.

How does one respond to a medical records subpoena in Arizona?

First and foremost, medical practitioners must ensure they have the written authorization of a patient or the patient’s healthcare decision-maker before releasing the records. The release of records without the patient’s consent can only be done when it is ordered by a court or a law requirement (such as the HIPAA Privacy Rule). Persons that receive the records cannot disclose them to other third parties unless the patient consents in writing or re-disclosure are granted by law.

General HIPAA requirements for subpoenas

• Signature verification. A subpoena will only have a force of law if it is signed by a registered legal practitioner; Court subpoenas have to be signed by judges. Court-order subpoenas have a higher jaw force, and they cannot be objected to.
• Subpoenas have to be specific. While seeking medical record information, the subpoena has to request specific information. The requirement is so that there is a minimal release of records to fulfill a subpoena.
• HIPAA requires that the patient is given sufficient notice. There is a minimum Necessary Standard outlined in the privacy rule. The patient can therefore decline a subpoena but not a court order.

HIPAA Privacy Rule

It is a national rule that protects individual medical information and records that sets limits on the uses that may be made of such disclosure without a patient’s clearance. It gives individuals a right to obtain their health records, direct an entity to disclose them to third parties, and request any corrections. In Arizona, HIPAA guards against subpoenas by presenting conditions that must be met before medical records are released.

1. For subpoenas issued by a judge or magistrate, the medical practitioners must comply with the information demanded, or attract fines.
2. For subpoenas issued by grand juries, the practitioner must strictly comply with its terms. Since grand jury proceedings are confidential, HIPAA does not require additional protections.

For subpoenas issued by an attorney, the practitioner has to meet the following conditions:

1. The practitioner should contact the patient orally or by letter, explain that they have received a subpoena requiring disclosure of the patient’s information, and notify the patient that they are required to respond unless the patient quashes the subpoena and notifies the practitioner before the deadline for responding to the subpoena. Once the practitioner sends such notice, the burden is on the patient to reject the subpoena if they want to protect their personal information
2. The practitioner may obtain written assurances from the entity issuing the subpoena that either: 

(a) the entity made a good faith attempt to give the patient written notice of the subpoena, the notice included sufficient information to permit the patient to object to the subpoena, and the time for raising objections has passed, or the court ruled against the patient’s objections, or 

(b) the parties have agreed on a protective order, or the entity seeking the information has filed for a protective order. (45 C.F.R. § 164.512(e)(1)(iii)-(iv)).

1. Or the practitioner may obtain a valid HIPAA authorization executed by the patient. To be valid, the authorization must contain the elements and statements required by 45 CFR § 164.508.

If the practitioner cannot satisfy one of the above, they may not disclose protected health information, nor may they ignore the subpoena without subjecting themselves to possible contempt sanctions. The practitioner may need to appear in response to the subpoena, assert an objection based on HIPAA, and wait for the court to order disclosure.

Subpoenas are issued by attorneys in Arizona to obtain patients’ records for use in personal injury claims, medical malpractice claims, or any other kind of civil lawsuit or even a criminal suit.