Receive a Grand Jury Subpoena? What’s a Health Care Provider to do?
Health care providers are required to obey a properly issued grand jury subpoena seeking medical records or other confidential patient information, right? After all, it’s a subpoena. The answer may not be as straightforward as it seems.
An Ohio federal court suggests that providers need not obey a subpoena issued by a state grand jury. In Turk v. Oiler,1 the Cleveland Clinic (“Clinic”) received a state grand jury subpoena requesting Turk’s medical records. It, naturally, provided medical records in response, despite not having Turk’s permission.
Turk sued in federal court, alleging that the Clinic invaded his privacy rights. The Clinic argued that it was required to obey the grand jury subpoena. The Health Insurance Portability and Accountability Act (“HIPAA”) does, after all, specifically authorize the release of medical records in response to a grand jury subpoena, and the United States Department of Justice has recently attempted to pursue subpoenas on these exact grounds.2 Alternative considerations exist, however, that require a provider to maintain confidentiality.
The Ohio physician-patient privilege, which protects communications made to a physician by a patient or the physician’s advice to the patient during the physician-patient relationship,3 is stricter than HIPAA in protecting patient records in this context, and it controls the provider’s obligation. The privilege does allow disclosure in certain, enumerated instances (such as when the patient gives consent or when the patient sues a provider for malpractice), but a state grand jury subpoena is not one of those instances. The Court in Turk and Ohio courts repeatedly and consistently refuse to create judicial exceptions to Ohio’s physician-patient privilege. In fact, an Ohio appellate court specifically declined to judicially create an exception for grand jury subpoenas.4 Because none of the statutory exceptions applied, the privilege prohibited the disclosure of Turk’s medical records.
A Distinction: Cleveland Clinic Foundation v. USA5
In a more recent case, the Clinic petitioned to modify or set aside civil investigative demands (“CID”) issued by the United States Attorney for the Northern District of Alabama. The Clinic was concerned, not surprisingly given the outcome in Turk, that compliance with the CIDs would violate its patients’ privacy and subject it to civil liability under the Privilege. The Clinic even argued Turk in support.
The Court distinguished Turk. In Turk, release of confidential medical information was in response to a state court grand jury subpoena issued pursuant to state law, whereas in this latter case, the CIDs were issued pursuant to federal law. Consequently, CIDs and federal grand jury subpoenas are governed by federal law, which does not recognize a physician-patient or hospital-patient privilege. The Court concluded that the Ohio physician-patient privilege statute has no application to CIDs issued pursuant to federal law or to subpoenas issued by a federal court to aid in a federal grand jury investigation.
As evident from this latter case, the physician-patient privilege is a matter of state law. West Virginia and Kentucky do not recognize a physician-patient privilege.6 Providers in West Virginia and Kentucky, therefore, cannot rely on the privilege to avoid compliance with a properly issued grand jury subpoena.
Providers in Ohio should not release or disclose medical records and confidential health information without authorization unless a specific statutory exception to the physician-patient privilege applies, whether commanded by state court grand jury subpoena or otherwise. Ohio courts seem unwilling to judicially create exceptions. The prudent course of action seems to be moving to quash the subpoena on grounds of the privilege.7 Conversely, Ohio providers should comply with subpoenas seeking confidential health information issued pursuant to federal law, assuming compliance with HIPAA and other applicable law, because federal law does not recognize a physician-patient privilege.
Providers in West Virginia and Kentucky, because these states do not recognize a physician-patient privilege, cannot rely on it to refuse to obey a grand jury subpoena and likely should comply assuming no violation of other applicable law.
1 732 F. Supp. 2d 758 (N.D. Ohio 2010)
2 45 C.F.R. 164.512(f)(1)(ii)(B).
3 O.R.C. § 2317.02(B)(1).
4 In re Banks, 2008 Ohio 2339 (Ohio App. 4th 2008) (reversing trial court’s denial of physician’s Motion to Quash subpoena issued by state court grand jury).
5 2011 U.S. Dist. LEXIS 31963 (N.D. Ohio 2011).
6 State ex rel. Allen v. Bedell, 454 S.E.2d 77, 80 (W. Va. 1994); Stidham v. Clark, 74 S.W.3d 719, 727 (Ky. 2002).
7 See In re Banks, 2008 Ohio 2339 (Ohio App. 4th 2008) (reversing trial court’s denial of physician’s Motion to Quash subpoena issued by state court grand jury).