I’ve received questions from both prosecutors and defense lawyers about whether and how the state can obtain a suspect’s — or a defendant’s — medical records when those records may contain information relevant to a criminal investigation. The most frequently-asked questions are addressed in the scenario below. Take a look, and post a comment if you disagree with my analysis of the law.
Suppose that Dan Driver has a one-car accident. Ollie Officer responds to the scene. Because it is 2:00 a.m. and there is no obvious cause for the accident, Ollie suspects Dan of DWI. EMTs take Dan to the local hospital for treatment, and Ollie is not able to, or simply fails to, obtain a blood sample under the implied-consent laws. Ollie contacts Paul Prosecutor and asks him to obtain a court order for Dan’s medical records, which Ollie knows are likely to contain bloodwork reflecting Dan’s blood alcohol content. Paul agrees to seek the order, and prepares a motion and order under G.S. 8-53, which allows the disclosure of otherwise-privileged health care records if “necessary to a proper administration of justice.”
1. Is such an order even necessary? Generally, yes. Under G.S. 90-21.20B, a health care provider must, upon request, “disclose to any law enforcement officer investigating the crash” certain information about Dan, because he was involved in an accident, including “name, location, and whether the person appears to be impaired by alcohol [or] drugs.” But this does not appear to authorize health care providers to disclose Dan’s medical records, which are what Paul and Ollie want. Such records are privileged under G.S. 8-53, and so are not subject to disclosure absent a court order. Paul and Ollie might, alternatively, obtain a search warrant for the hospital, though the hospital may view a court order as less threatening.
2. What showing must the state make in order to obtain such an order? Likely, reasonable suspicion. Cf. In re Superior Court Order, 315 N.C. 378 (1986).
3. Suppose that no charges are pending against Dan. Must Paul give Dan any notice of his intent to seek a court order? Probably not. Since there are no charges pending, Dan is not a “party” to any proceeding, and G.S. 15A-951, which requires motions to be served, therefore does not apply. Likewise, Paul’s motion is technically not ex parte, as there is no opposing party. Moving for an order under such circumstances would be akin to seeking a search warrant, or to seeking an order under In re Superior Court Order, supra, either of which may be done without providing notice to the suspect.
4. Suppose that Ollie charged Dan with DWI prior to contacting Paul. Must Paul give Dan any notice of his intent to seek a court order? Probably so. Because Dan now is a party, G.S. 15A-951 requires that the motion be served on Dan. Furthermore, submitting the motion ex parte likely violates the Rules of Professional Conduct. See Rule 3.5(a)(3); 2001 FEO 15. The mere fact that G.S. 8-53 allows a court order to trump the physician-patient privilege says nothing about whether such orders may be obtained ex parte. Nor does State v. Jones, 133 N.C. App. 448, 463 (1999), allow such an ex parte motion. The court there stated that “[a]lthough the case law prohibits ex parte communications with a party’s health care provider in civil cases absent the party-patient’s express consent . . . defendant has cited no authority to extend this rule to criminal defendants.” Not only does Jones fall short of holding that ex parte contacts with health care providers are permissible, by its terms it applies only to such contacts, not to ex parte contacts with the court, which is, of course, where Paul’s motion would be filed.
5. If Paul fails to give notice to Dan but notice was required, what happens? Dan may be able, in effect, to contest the motion after the fact, by appealing the order and/or by moving to suppress the evidence produced in response to the order or moving in limine to exclude it. See State v. Miller, 80 N.C. App. 425 (1986). Thus, Paul’s failure to give notice does not necessarily prejudice Dan, and does not necessarily require the exclusion of evidence produced in response to the order. However, a judge probably could exclude the evidence, if so inclined and upon proper findings, under the statutory exclusionary rule in G.S. 15A-974.
6. Which records should the judge require the hospital to produce? The judge should not allow the state to review all of Dan’s medical records, which may contain private and irrelevant information. Instead, the court’s order should require the hospital to produce only medical records that are relevant to the issue of impairment, including the results of any blood tests. If the judge is in doubt about the relevance of certain records, the judge may require an in camera inspection of the records, after which the judge may disclose the relevant records and withhold the remainder.