ARTICLE
Attorney-Issued Subpoenas in the
Pharmacy Practice
Jon A. Wallace, B.S. Pharm., J.D., SCPhA’s General Counsel
Most pharmacists generally know the basic framework of the Health Insurance Portability and Accountability Act of 1996, better known as “HIPAA.”
A key goal of this legislation is to protect patient’s
privacy rights involving protected health information (“health information”). As the privacy rules
continue to evolve, most recently under the Health
Information Technology for Economic and Clinical Health or “HITECH”, I still get questions that
reflect a misunderstanding of the effect
that HIPAA has on subpoenas issued to
pharmacies for production of medical
and prescription records. To further
complicate matters, patient prescription privacy practices must also comply
with both the South Carolina Prescription Privacy Act and South Carolina
Pharmacy Practice Act.
Most pharmacists have received what is called a
subpoena duces tecum. This is a request for records
in a civil lawsuit. Most commonly, the lawsuit
involves a domestic issue where a spouse is trying
to get some “dirt” on the other during a contentious
divorce (is there any other kind?) or child custody
dispute.
First, if a subpoena is issued under an order of a
court or administrative tribunal, you may disclose
health information without further inquiry. The
most common subpoena that you will see is a
subpoena issued by an attorney. The attorney, as a
court officer, has the authority to issue a subpoena
on behalf of a court in which the attorney is authorized to practice. Failure to comply with the subpoena could result in sanctions by the court. However, a
subpoena for health information must meet HIPAA
requirements. A pharmacist cannot respond to such
a subpoena by providing the requested documents
without first performing due diligence to achieve
compliance and thus, protecting yourself from committing a HIPAA violation.
When an attorney issues a subpoena for health information, he or she must notify the other party (to
whom the health information pertains) to give that
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person the opportunity to object. So, any subpoena
that you receive should contain documentation that
states the following:
1. The party requesting the information has made a
good faith attempt to provide written notice of the
request to the other party;
2. The notice included sufficient information about
the litigation or proceeding in which the health information is requested to permit the party
to raise an objection to the court; and
3. The time for the individual to raise
objections to the court has elapsed and
no objections were raised or all objections have been resolved by the court.
If the request does not have such assurances, you should, in writing, refuse
the request until the requesting party
provides these assurances, an order from the court,
or written consent from the other party. Generally,
if there is a dispute among the parties pertaining to
health information, the parties will agree on a “qualified protective order” from the court that limits the
health information for use in the litigation before the
court.
With that said, here is the monkey wrench: Compliance with HIPAA does not mean that you have
complied with South Carolina privacy requirements.
The South Carolina Prescription Privacy Act provides
that without the consent of the patient, prescription
records can only be released under certain statutory conditions. This Act explicitly does not apply
to “the authority of a court to issue a subpoena for
medical records and patient prescription drug information.” S.C. CODE § 44-117-50. Because any
subpoena issued by an attorney is done so on behalf
of the court, it might appear that this Act would not
result in additional responsibilities in responding to
attorney-issued subpoenas above those created by
HIPAA. However, in a 2002 newsletter, the Board
of Pharmacy took the position that the “[r]elease of
records based upon receipt of [an attorney issued]
subpoena is unprofessional practice and both the
pharmacist and the pharmacy may be disciplined by
Palmetto Pharmacist • Volume 50 Number 1
the Board . . . .” The Board’s position appears based,
in part, on the South Carolina Pharmacy Practice Act,
which states that unprofessional conduct includes
“divulging or revealing to unauthorized persons patient information or the nature of professional pharmacy services rendered without the patient’s express
consent, or without order or direction of a court.”
S.C. Code § 40-43-86(DD)3. To date, the Board has
not formally changed this 2002 position, although
I do not believe the Board has disciplined anyone
under this position.
Consequently, it would seem that the Board is providing a strict interpretation of the term “direction of
a court.” Based solely on the Board’s position in the
newsletter, there appears an inherent risk in producing health information in response to an attorney-issued subpoena without the written consent of the
patient or receiving an order from the court. Then
again, this risk must be weighed against the possibility of sanctions should a judge not agree.
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Palmetto Pharmacist • Volume 50, Number 1
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