Out-of-State Requests for in-State Medical Records

From time to time, an officer from another state wants to get medical records from a North Carolina hospital. For example, a South Carolina officer may want the medical records of a driver who was involved in an accident just south of the border and who was taken to a North Carolina hospital. The officer may suspect that the driver was intoxicated, and may want the driver’s hospital records in order to prove it.

If the accident, and the officer, were located in North Carolina, the matter would be routine. The officer could obtain a search warrant or a court order – on the latter possibility, see this blog post – and take it to the hospital.

But in the scenario under consideration, the officer’s in South Carolina, and a South Carolina court can’t issue a search warrant that’s valid in North Carolina. That’s true as a matter of South Carolina statutory law, S.C. St. 13-17-140 (a search warrant may be issued only by a judicial official with “jurisdiction over the area where the property sought is located”), and is probably true as a matter of constitutional law also, as discussed to some extent in this blog post. Presumably a South Carolina court order would also be ineffective, for similar reasons. (The law in this area is arcane, so the officer may be able to convince a South Carolina judicial official to issue a warrant or an order, and may then be able to convince a North Carolina hospital to comply with the seemingly valid warrant or order. But that’s not the right way to proceed. The hospital shouldn’t comply, because under HIPAA, it generally may not release protected health information unless “required by law,” a standard that an invalid warrant or order would not satisfy.)

The better approach is for the officer to ask a North Carolina officer or prosecutor to obtain a North Carolina search warrant or court order. Under G.S. 15A-242, an item may be the object of a search warrant if, inter alia, it “[c]onstitutes evidence of an offense.” Nothing in the statute limits it to an offense committed in North Carolina, and for good reason: allowing judicial officials to issue search warrants only for evidence of crimes committed here would make North Carolina a safe haven for evidence of crimes committed elsewhere. Although there’s no North Carolina case on point, courts generally have ruled that it is proper to issue a search warrant for evidence of a crime committed in another state. State v. Intercontinental, Ltd., 486 A.2d 174 (Md. 1985) (Maryland court properly issued a search warrant for evidence in Maryland of a crime committed in New Jersey); State v. Heylmun, 708 P.2d 778 (Ariz. Ct. App. 1985) (Arizona courts may issue search warrants for evidence in Arizona of crimes committed in other states, so long as the activity in question would also be criminal under Arizona law); State v. Szepanski, 1998 WL 1034949 (Conn. Super. Ct. May 28, 1998) (unpublished) (similar, in dicta). As an aside, some other states are more explicit than North Carolina is about this authority. See, e.g., Colo. St. 16-3-301 (allowing the issuance of a search warrant for items “[w]hich would be material evidence in a subsequent criminal prosecution in this state or in another state”). By analogy, I believe that a North Carolina court could also issue an investigative order directing the hospital to produce the records.

If South Carolina authorities have sufficient evidence to charge the driver with a crime without the records, a South Carolina prosecutor might be able to obtain the records once a case is pending, using the uniform law regarding interstate witnesses in criminal cases. That law is set out in North Carolina’s statutes at G.S. 15A-811 et seq. The prosecutor might be able to use the law to compel the attendance of the hospital’s records custodian, and to require the custodian to bring the relevant records. Additional information about this process is available in footnote 19 of this publication. However, the process is cumbersome and requires court orders from both states. Further, the process was not designed for medical records and the attendant confidentiality concerns, so the courts’ orders would probably need to be modified ad hoc to address those issues. In all, the process described in the preceding paragraphs is probably a better way for the South Carolina authorities to proceed.