Issue 7 - May 2004

Ask The Attorney By Deborah Green, Esq
How does HIPAA affect a subpoena?

The county district attorney has subpoenaed information about my patient. The subpoena states that I am not permitted to reveal to my patient that this information has been subpoenaed. Obviously, I don’t have patient authorization for the release of this information nor can I get it because I’m not allowed to tell the patient about the subpoena. The subpoena states further that I will be held in contempt if I don’t release the information. Am I violating physician-patient privilege and/or HIPAA if I release this information?

You must provide the authorities with subpoenaed protected health information records (PHI) without patient authorization under the following circumstances:

1. To comply when served with certain law enforcement processes;

2. To help identify or locate suspects and fugitives;

3. About crime victims;

4. About decedents in whose deaths crime may have been involved;

5. To report crime on premises; and

6. To report crime in emergencies.

In none of the situations, does HIPAA:

1. Limit or preclude you from disputing the scope of the subpoena if such procedural rules exist in your county;

2. Create new requirements to report information or expand the rights to access of the authorities;

3. Preempt other burdens placed on law enforcement — for example, if state law requires that a law officer obtain a court order before seeking certain information, the officer must get it.

4. Limit the government’s burden if other laws require disclosure. u

If you have any questions about this issue or with respect to any other legal heathcare issues, fax (954-236-8282) or e-mail healthattorney@aol.com Deborah Green. She will answer questions of interest to the broadest audience. Ms. Green is a practicing attorney in New York and Florida and is a member of the American Health Lawyers Association, the New York State Bar Association Health Care System Design Committee, the New York State Bar Association Health Care Providers Committee, the American Bar Association Health Law Section and the Florida Bar Health Law Section.

LEGAL DISCLAIMER: This column is provided for educational purposes only. The accuracy or timeliness of the information presented herein is not warranted. The information presented is not intended to be advice as to a specific fact pattern with which you may be presented. Accordingly, please note that the information contained herein is not being presented as legal advice with respect to any matter and that no attorney-client relationship is established.