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Health Care

A Checklist for Responding to Attorney-Issued Medical Record Subpoenas Without Violating HIPAA

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  1. Review the subpoena. Is your patient a party (plaintiff or defendant)?

    • If no, and the patient is not a minor/incompetent, either move to quash the subpoena or request a Court order before producing the medical records.
    • If no, and the patient is a minor/incompetent, then check to ensure that the party requesting the records has signed a valid HIPAA authorization. If the party has signed a valid HIPAA authorization, go to No. 2 below. If the party has not signed a valid HIPAA authorization, you will either need to obtain an authorization, produce the records to the Court under seal, or move to quash the subpoena.
    • If yes, move to No. 2.

  2. Was the subpoena served on the patient (is there a cover letter and/or certificate of service that indicates that the patient has been provided a copy of the subpoena)?

    • If no, you will either need to obtain the patient’s authorization/consent or you need to move to quash the subpoena.
    • If there is no cover letter and/or certificate of service, call the attorney who sent the subpoena and ask and then obtain the response in writing.
    • If yes, move to No. 3.

  3. Has 10 days elapsed since the subpoena was served on the patient?

    • If no, contact the patient (or his/her attorney) and obtain in writing confirmation that the patient does not intend to file a motion to quash, OR
    • Wait 10 days before producing the medical records.
    • If yes, produce the records.

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