51 RI Bar J., No. 1, Pg. 9 (July, 2002). Confidentiality of Health Care Records and Subpoenas.

• Author: Eugene G. Bernardo II, Esq.

Rhode Island Bar Journal

Volume 51.

51 RI Bar J., No. 1, Pg. 9 (July, 2002).

Confidentiality of Health Care Records and Subpoenas

Confidentiality of Health Care Records and SubpoenasEugene G. Bernardo II, Esq.Eugene G. Bernardo II is an associate of Partridge Snow & Hahn LLP in Providence, Rhode Island.Practitioners involved in many types of cases may need to issue a subpoena to a health insurer for an individual's health care records. The subpoena often implicates the Rhode Island Confidentiality of Health Care Communications and Information Act. (fn1) In short, the Confidentiality Act creates an underlying privilege in one's medical records. This privilege generally protects a person's confidential health care records from being released or transferred to third parties without the written consent of the patient or his or her authorized representative. (fn2) Confidential health care information means "all information relating to a patient's health care history, diagnosis, condition, treatment, or evaluation obtained from a health care provider who has treated the patient." (fn3)

While the Confidentiality Act contains a laundry list of statutory exemptions to the privilege whereby no consent is required for the release or transfer of confidential health care information, (fn4) depending on the breadth of the subpoena's request, it is often difficult for the health insurer to apply the exemptions with the confidence of impunity. For example, when the subpoena, as many of them do, broadly requests "a copy of the complete file pertaining to Mr. Patient in your possession, custody or control," how can the health insurer, not even a party to the underlying action, competently decide what records are material to the underlying action and what records are not? For example, are all the records in the health insurer's file related to the pending medical malpractice action? Are all the records related to the personal injuries sustained in an accident? Or, are all the records directly related to a claim for workers compensation?

Given that the Confidentiality Act allows for actual and punitive damages against those who violate the statute, it is extremely likely that such a broadly worded subpoena, without more, will generate an objection from the health insurer and cost the issuing attorney time and effort in attempting to obtain...