Transcript Medical Records Subpoena - Bend Personal Injury Attorney

*
Presented by Jennifer Coughlin
www.brotherslaw.com
Eugene, Oregon
April 10, 2013
*
1.
Civil Proceedings: How to Subpoena Medical
Records Under HIPAA and Oregon Law
2.
3.
Information to Secure
4.
5.
Civil vs. Criminal
Criminal Proceedings: How to Subpoena
Medical Records Under HIPAA and Oregon Law
Violations: what happens if you produce
records in violation of HIPAA or state Law?
*
*ORCP55:Subpoenas
* ORCP55H: Individually Identifiable Health
Information
* 55H(1) (a) Definition
* 55H(1) (b) Qualified protective order
* 55H(2)(a)
* Modes of compliance
for attorneys
* QPO or affidavit:
* 14 day objection
* Sufficient information
* No objections or
resolved
*
* 55H(2)(b)
* Mailing within 5 days
* Affidavit from records
custodian
* Inner envelope
* Title and number of action
* Name of witness
* Date of subpoena
* Outer envelope
* Court attendance
* Deposition attendance
* Hearing attendance
* To attorney issuing subpoena
* Inspection or copy
* Requests
*
*Inspection after
filing and giving
notice
*
*
a)
Affidavit or declaration
i.
ii.
Duly authorized custodian
iii.
Control of or ordinary
course of business
True copy of all records
responsive
b) None or part, put in
affidavit
c) More than one
affidavit or declaration
a) Personal attendance
b) More than one
subpoena
“The personal
attendance of a
custodian of records
and the production of
original records is
required by this
subpoena. The
procedure authorized
pursuant to ORCP
55H(2) shall not be
deemed sufficient
compliance with this
subpoena.”
i. Custodian is witness
to first party
*
*Tender and payment
of fees
Nothing in this section requires
tender or payment of more than
one witness and mileage fee or
other charge unless there has been
an agreement to the contrary.
*
* When was subpoena served?
* How and upon whom was it
served?
* What documents
*
accompanied the subpoena?
* Is there a release on file to
disclose the information
sought?
•
Has the witness:
• Agreed to the time and
date?
•
Talked to the attorney
issuing the subpoena?
ORS 136.447
Medical records may be obtained by subpoena as provided
in ORCP 55and shall be sent only to the court or the clerk
of the court before which the matter is pending.
In relation to grand jury proceedings, notice need not be
given as required in ORCP 55H and the medical records
shall be sent only to the grand jury.
*
Is it a subpoena issued by the prosecutor or defense
attorney?
YES
Release on file?
YES
Produce the Records
Is the subpoena
accompanied by a
release or court order
signed by a judge
authorizing the
disclosure of the
records?
YES
Produce the
records as directed
by the subpoena
Was the subpoena accompanied by the
assurance affidavit stating:
YES
•Patient was provided notice of
subpoena
•Time for objection has passed or
that all objections have been
resolved and production of the
records is consistent
Produce the
Records
Attorney has attempted to
provide written notice to
patient?
No HIPAA assurance
affidavit received,
Is there
documentation with
the subpoena or
information in it
that establishes:
Notice to patient sufficiently
described the lawsuit or
proceeding to allow the patient
to object to the production of
the records or information if
patient was so inclined
Has at least 14 days passed
from the date patient actually
received the notice and:
•Patient has not objected; or
•Patient’s objections have
been filed with the court; and
•The court has ruled on those
objections
Produce
the
Records
YES
If no HIPAA assurance affidavit has been provided by the
attorney and there is insufficient documentation providing the previously
mentioned information…
Produce
The
Records
If that is produced
Request that the
attorney issuing
the subpoena
provide a release
or an assurance
affidavit
If the
attorney
refuses to
provide a
release or
an assurance
affidavit
Appearance
required at a
deposition?
Appearance
required in
court?
Send a
letter
objecting
to the
subpoena
File a motion to quash
Is the subpoena for
drug or alcohol
records?
YES
Is there a release in the file or is the subpoena
accompanied by a release authorizing disclosure of the
requested information that complies with requirements of
42 CFR 2.31?
YES
Produce the Records
•Specific name or general designation of the
program or person permitted to make the
disclosure?
•Name or title of individual or name of the
organization to which disclosure is to be
made?
YES
•Name of patient?
Does the
release
contain:
•Purpose of disclosure?
•How much and what kind of information is
to be disclosed?
•Signature of the patient or the person
authorized to give consent on behalf of the
patient?
•The date on which the consent is signed?
•A statement that the consent is subject to
revocation at any time except to the extent
that the program or person which is to make
the disclosure has already acted in reliance
on it?
•The date, even or condition upon which the
consent will expire if not revoked before?
Produce
the
Records
If there is no consent which complies with 42 CFR 2.31, is
there a court order signed by a judge (not a clerk)
expressly and specifically referring to the drug/alcohol
treatment records being sought that states …
•Patient and healthcare provider had
been given sufficient notice of the
application to the court for the order to
obtain the records;
•The court finds that other ways of
obtaining the same information being
sought are “not available or would not
be effective”;
•The court finds that the public interest
and need for the disclosure outweigh
the potential injury to the patient, the
physician-patient relationship and the
treatment services;
•The order names the specific persons to
whom the disclosure needs to be made.
YES
Produce
the
Records
If there is no court
order, and no consent…
Appearance
required at a
deposition
Appearance
required in
court
Send a letter objecting to
the subpoena
File a motion to quash
*Civil: can produce directly
to attorney
*Criminal: can only
produce at court
hearing/trial
*
a)
Civil fines
i.
ii.
i.
ii.
Individual did not know (and by
exercising reasonable diligence
would not have known) that he
or she violated HIPAA:
Min: $100/violation
Max: $50,000/violation
Violation due to reasonable
cause and not due to willful
neglect:
a)
b)
iii.
Min: $1,000/violation
Max. $50,000/violation
Violation due to willful neglect
but violation is corrected within
required time period (30 days):
a)
b)
iv.
*
Min: $10,000/violation
Max: $50,000/violation
Willful neglect not corrected:
a)
b)
Min: $50,000/violation
Max: $50,000/violation
b) There is no private right to
a cause of action under HIPAA.
The only remedy is under
State law causes of action