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26
T H E P R I M E R U S P A R A D I G M
Using Subpoenas to Obtain Medical Records
At least one reason why third-party
bodily injury claims often end up in
litigation, and on my desk, is that the
claimants (and their attorneys) failed
to provide the insurance company
with sufficient records detailing their
treatment. Frequently requests are
sent that the claimant execute an
authorization allowing the company to
obtain medical records directly from
the providers. However, the scope of
these authorizations are often limited
by claimants' attorneys to only records
and/or providers related to the subject
accident. Thus, legitimate inquiries into
preexisting conditions are thwarted.
Once a claim enters litigation,
plaintiffs must disclose the medical
records and bills that support their
claims, but absent a local rule or
practice dictating otherwise, records
predating the subject accident are rarely
produced. Thankfully, courts have
almost universally upheld the idea that
"parties are permitted to conduct full,
wide-ranging discovery as long as it is
aimed at obtaining material which will
be relevant to the ultimate disposition
of the case."
1
Nevertheless, there is
disagreement among federal district
courts as to whether a plaintiff can be
compelled to provide a medical records
authorization via Rules 34 and 37 of the
Federal Rules of Civil Procedure.
2
In
light of that, the most direct path is for
defense counsel to serve a subpoena for
the records on the medical provider(s)
pursuant to FRCP 45.
Care must be taken to ensure the
subpoena complies with the provisions
of the Health Insurance Portability and
Accountability Act of 1996 (HIPAA)
which governs the disclosure and
security of personal health information.
Under 45 C.F.R. § 164.512(e)(1)(ii), a
"covered entity" may disclose protected
health information in the course of any
judicial or administrative proceeding "in
response to a subpoena, ... , that is not
accompanied by an order of a court or
administrative tribunal" so as long as the
entity receives "satisfactory assurances"
that the individual whose protected
health information is being sought has
received notice of the subpoena.
The "satisfactory assurances"
requirement is met where:
a covered entity receives satisfactory
assurances from a party seeking
protected health information if
the covered entity receives from
such party a written statement
and accompanying documentation
demonstrating that:
(A) The party requesting such
information has made a good
faith attempt to provide written
notice to the individual (or, if the
individual's location is unknown,
to mail a notice to the individual's
last known address);
(B) The notice included sufficient
information about the litigation or
proceeding in which the protected
North America ­ United States
Joshua A. Sliker's practice is focused on defending insurers
and their insureds in bad faith, auto accidents, premises liability,
products liability and construction defect (subcontractor) cases.
Barron & Pruitt, LLP
3890 West Ann Road
Las Vegas, Nevada 89031
702.331.8900 Phone
702.870.3950 Fax
jsliker@lvnvlaw.com
barronpruitt.com
Joshua A. Sliker