The Medical Records Subpoena After King: the Medical Records Custodian's Perspective

• Publication year: 2001
• Pages: 0001

Georgia Bar Journal Volume 6.

GSB Vol. 6, No. 5, Pg. 1. The Medical Records Subpoena After King: The Medical Records Custodian's Perspective

Georgia State Bar Journal
Vol. 6, No. 5, April 2001

"The Medical Records Subpoena After King: The Medical Records Custodian's Perspective"

By Terry L. Long

Across the country, various theories of privilege have protected medical records from disclosure. Courts have refused disclosure even though the interests of the parties seeking medical records appear great. For example, records have been kept secret even though they could establish physician malpractice such as performing operations while intoxicated,1 providing a basis for criminal prosecution,2 or even saving a child from an abusive custodial situation.3 For the first time in Georgia, the Supreme Court expressly confirmed the constitutionally protected status of medical records in King v. State.4 Although "Georgia does not recognize a common-law or statutory physician-patient privilege,"5 the Court found that "a patient's medical information . . . is certainly a matter which a reasonable person would consider to be private."6 The Court made clear that medical records are protected by the privacy interest that emanates from the due process clause of the Georgia Constitution.7 According to the Georgia Supreme Court, the right to privacy "has its foundation in the instincts of nature."8 Surely, privacy has been seen by many as the natural order of things since Adam and Eve realized that they needed to put on their clothes. Given our society's interest in keeping medical records private, what should a medical records custodian do when they find themselves inundated with subpoenas and non-party requests to produce? If the records are turned over improperly, a custodian could face litigation for violating privacy rights.9 On the other hand, if the custodian fails to comply with discovery requests, the custodian may be hauled into court to face motions to compel and contempt sanctions.10 The custodian cannot assume that it will be a bystander. Prior to King, life was simple. A subpoena was sent pursuant to O.C.G.A. 24-9-40,11 and medical records were turned over.12 Now, with every request for records, a disinterested custodian faces potential litigation. The following analysis is offered for some guidance through obtain medical records. Although the case involved a criminal prosecution, the Court's conclusions are equally applicable in civil proceedings. The message while arguably only dicta, comes as a warning: "There is some doubt whether [O.C.G.A. 24-9-40(a)] can even be construed as affirmative authority for a litigant to subpoena the medical reports of an opposing party who has not waived the privilege."14 The Court more directly stated its unanimous opinion that: "[O.C.G.A. 24-9-40] does not confer express authority on . . . another party to file a subpoena seeking a patient's medical records."15 The King decision criticized O.C.G.A 24-9-40(a) as a means to subpoena medical records on three grounds: 1) the lack of specificity authorizing subpoena power; 2) the unlimited nature of the power; and 3) the inability of the patient to object to the production. First, the Court criticized the statute's "lack of specificity" in expressly authorizing release of medical records. The Court concluded that, "[s]ince . . . medical records are protected by the constitutional right of privacy, they cannot be disclosed without . . . consent unless their production is [expressly] required by the law."16 O.C.G.A. 24-9-40 however, "confer[s] [no] express authority."17 Thus, the lack of express authority may invalidate the statute as a means of obtaining medical records. second, the Court objected to the unlimited use of the these new murky waters. In analyzing a medical records discovery request there should be both an understanding of the scope of the protection afforded medical records under the King decision, and a consideration of possible discovery methods in light of these new parameters

The Scope of the Medical Records Privilege

Defining the scope of privacy for medical records is like the 1958 movie "The Blob." Privacy interests are like the scary, growing, oozing creature from that movie in several respects. Neither the Blob nor privacy interests have sharply defined characteristics.13 Both the Blob and privacy rights ooze from uncertain natural phenomena. Finally, both seem to keep growing larger. Following King, protected medical records should be an even more frightening issue for a records custodian. However, to help calm these fears, we must first understand what the King Court held. In King, a prosecutor attempted to secure evidence of the criminal defendant's blood alcohol levels by subpoenaing hospital records of the defendant. The defendant had been treated by the hospital following a single-car collision. The Court concluded that the prosecutor could not...