Health Law

HOSPITAL PRIVACY BREACH -- DELIVERY OF MEDICAL RECORDS TO GRAND JURY.

By Greg Piche'

 In responding to government or grand jury subpoenas for medical records, analysis under the Health Insurance Portability and Accountability Act of 1996 (?HIPAA?), may not be the end of the road. HIPAA specifically authorizes a hospital to release a patient?s medical records in response to a grand jury subpoena. 45 C.F.R. Sec. 164.512(f)(1)(ii)(B). Unlike most federal statutes that pre-empt conflicting state laws, HIPAA specifically permits more stringent state medical privacy laws to pre-empt HIPAA. In the recent case of Turk v. Brian Oiler, et al., in the U.S. District Court for the Northern District of Ohio, a U.S. District Judge held that Ohio?s physician-patient privilege did not permit delivery of medical records to a grand jury and thus preempted HIPAA and exposed the Cleveland Clinic to potential exposure for delivery of the mental health and substance abuse records of the plaintiff James Turk to a state grand jury. 

The grand jury was investigating a complex series of events wherein Mr. Turk was found to have an unloaded pistol in his automobile. It is a criminal offense under Ohio law for a person with drug abuse problems to obtain or possess a weapon. Mr. Turk filed a Section 1983 civil rights action against the Cleveland Clinic complaining that the Clinic had conspired with the state to violate Mr. Turk?s privacy rights ?under color of state law,? by surrendering the Mr. Turk?s records without notice to him or assertion of privilege. The court noted the rigidity of Ohio?s state medical privacy statute and the refusal of Ohio courts to create judicially generated exceptions to statutory privileges. 

As discussed previously, in this case, there is no statutory privilege permitting disclosure in response to a grand jury subpoena, and Ohio courts have declined to create public policy exceptions to the physician-patient privilege. In fact, in other contexts, Ohio courts have specifically refused to create a ?law enforcement exception? to privilege statutes.

 The court noted that his was essentially a separation of power issue and that it was inappropriate for courts to decide among conflicting public policy concerns, when the legislature had not provided an exception to its statute. The court did note that the mere release of the names of Mr.Turks physicians was not a violation as the privilege only applied to ?communications.?It is always prudent, to always check with your attorney before responding to a subpoena.

Full post as published by Healthcare Law Blog on February 13, 2010 (boomark / email).