On January 6, 2004, the New Hampshire Supreme Court issued an opinion clarifying the steps the State must take to demonstrate that it has the right to access medical records of criminal defendants. This case provides important guidance for healthcare providers who frequently find themselves required to respond to subpoenas. The case, In re Grand Jury Subpoena for Medical Records of Curtis Payne; In re Grand Jury Subpoena for Medical Records of Scott Carta; The State of New Hampshire v. Gregory Barka, 839 A.2d 837 (2004), is a consolidation of interlocutory appeals by three criminal defendants and St. Joseph's Hospital challenging the Superior Court's enforcement of subpoenas duces tecum requiring the hospital to produce the defendants' medical records.
In each of the three underlying cases, the State charged the defendant with felony aggravated driving while intoxicated, due to injuries the defendants sustained in automobile accidents. To establish the "serious bodily injury" element of the offense, the grand jury in two cases and the prosecution in the third subpoenaed each defendant's medical records. The defendants moved to quash the subpoenas, invoking the physician-patient privilege, which they said precluded the hospital from disclosing their medical records, without the patient's authorization. In response, the State argued that release of the records was "essential" to prosecute the three cases and therefore the privilege must be abrogated. The Superior Court ruled that disclosure was indeed essential, because the police had "insufficient opportunity to assess" the extent of the defendants' injuries, and "no competent alternative source of dispositive information was available" to the prosecution.
Citing prior cases in which the physician-patient privilege was permitted to be "abrogated in certain narrow circumstances when disclosure of privileged information is essential," the Supreme Court discussed at length the standard for determining when law enforcement's need for access to medical records can override the "competing public policy" of protecting patient health by maintaining the intended safeguards of the physician-patient privilege. To establish "essential need" for disclosure of privileged records, the State must prove both that there is a "compelling justification" for disclosure and that the information is not available from other sources. The Supreme Court reiterated the requirement that the State must make adequate efforts to procure the sought information — here, evidence of "serious bodily injury" — from alternative sources (assuming the information from those sources would be admissible and sufficient) before asserting that none were available. The Supreme Court also required trial courts to make explicit findings on rulings regarding whether to disclose privileged medical records, and to require offers of proof that the party seeking disclosure has made "substantial, good faith efforts to discover alternative sources of competent evidence," rather than accepting "bald conclusions by the State that alternative sources are non-existent or futile to explore." If the State can demonstrate that it has a legal right to override the physician-patient privilege, the trial court must then conduct an in camera review of the records to ascertain that only relevant and necessary information to prove serious bodily injury is released.
Of particular interest to health care providers is the Supreme Court's ruling regarding the grand jury subpoena served only on St. Joseph's Hospital, without copy to the defendant/patient. In granting the hospital's motion to quash, the Superior Court ruled that due process required the State to notify the criminal defendant of its efforts to access his medical records. On appeal, the hospital noted that when it is the only party notified of a grand jury subpoena seeking medical records, the secrecy of the proceeding precludes the hospital from contacting the criminal defendant/patient for authorization or to notify him or her of the impending records release. If the hospital released the records without a valid authorization or notice to the patient, such an action could violate the physician-patient privilege, exposing the hospital to possible tort liability for invasion of privacy, as well as liability for violation of various other state and federal laws. In light of the hospital's concerns and the concurrent need to ensure the secrecy of grand jury proceedings, the Supreme Court held that the State must provide a criminal defendant with "adequate notice of its effort to obtain his medical records. Therefore, any subpoena issued to a hospital or a medical provider to obtain privileged medical records must also be served upon the individual whose records are sought."
On balance, this Supreme Court case is good news for healthcare providers, because it shifts the burden to the State to assure that patients (who are subjects of criminal investigations) are provided an opportunity to have the issue adjudicated as to whether the physician-patient privilege should be abrogated and their medical records released.
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