Court Orders and Subpoenas for Records
How should I respond to a court order or a subpoena asking me to provide copies of a patient’s medical records? Should I provide the records if I haven’t been given a signed patient authorization?
If you are served with a subpoena or a court order, you must respond to it to avoid being in contempt of court. However, your response may differ depending on the documents and circumstances in the case.
If you receive either a court order or a subpoena accompanied by a signed, valid patient authorization, you may disclose the records, because the patient authorization by itself is sufficient to permit disclosure.
No Patient Authorization
When no patient authorization is provided with the court order or subpoena, the law permits only limited disclosure in certain situations. You must first determine whether the document served on you is a court order or a subpoena. If it is titled a court order or administrative order (such as an order of an administrative agency), and it contains a judge’s signature, federal law permits you to disclose protected health information as specifically described in the order. In these cases, a state court or agency can and will require you to comply.
Generally, it is more likely that the document served on you is a subpoena, which is governed by a different rule. The document will be entitled “Subpoena” or “Subpoena Duces Tecum,” and will indicate it was issued by someone other than a judge, such as a court clerk, an attorney in a case, or a record copy service on behalf of an attorney in a case. You are permitted to disclose information (in the absence of a signed patient authorization) to a party issuing a subpoena only if the requesting party informs you that either: 1) The requesting party has attempted to notify your patient, so the patient has a chance to object to the disclosure, or 2) the requesting party has obtained a protective order from the court to restrict use and re-disclosure of the health information.
In most cases, attorneys serve subpoenas for medical records with a signed court protective order, which is sufficient under the rules to permit you to provide records without patient authorization. This option provides the doctor with more protection than option #1 above, which requires you to determine whether the requesting party has provided adequate information that the patient has been notified and had a chance to object. However, whenever possible, the best protection for the physician is to obtain a signed authorization from the patient before releasing records to third parties. Therefore, it is good practice in all cases to request a signed authorization from the requesting party, or simply contact your patient to request one. However, be aware that you must comply with a valid subpoena and that you may need to rely on the other options if authorization is not available.
In any case, in which you provide copies, you may charge copy fees as established by the Illinois Comptroller’s Office at: http://www.ioc.state.il.us/index.cfm/resources/general-resources/copy-fees/. (See FAQ regarding medical record copy fees.)