This topic or question often comes up when we represent clients accused of DUI/Drunk Driving that have been involved in an accident and have been taken to a hospital and are charged with DUI in the process. Most of the time our clients have refused to provide a blood sample for testing when requested by the police officer – but can the police subsequently go back and try to obtain a copy of the medical records and see if the hospital ran a blood alcohol test on their own during treatment?
The short answer is – A prosecutor or law enforcement official may obtain the results of a blood test conducted for medical diagnosis and treatment under the Federal Health Insurance Portability and Accountability Act (HIPPA) regulations. These regulations allow a health care provider to disclose protected heath information in response to a court order or pursuant to a subpoena, if the parties to the dispute giving rise to the request have agreed to a qualified protective order or if the provider makes reasonable efforts to provide notice to the individual whose information is sought.
The South Carolina implied consent statute for DUI/drunk driving cases is not applicable to situations where blood is drawn and tested for purposes of medical diagnosis and treatment. State v. Hunter, 305 S.C. 560, 410 S.E.2d 242. In these situations, Federal HIPPA regulations apply to limit the State’s ability to obtain this “protected health information.” See 45 CFR parts 160 and 164.
Health care providers may disclose protected health information without the written authorization of the individual or the opportunity for the individual to agree or object in some situations. 45 CFR §164.512. They may disclose protected health information in the course of any judicial or administrative proceeding (1) in response to a Court order provided that they disclose “only the protected health information expressly authorized by such order,” or (2) “in response to a subpoena, discovery request, or other lawful process” if they receive “satisfactory assurance” from the party seeking the information that reasonable efforts have been made either “to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request” or “to secure a qualified protective order.” 45 CFR §164.512(e)(i)-(e)(ii).
The party requesting the information provides “Satisfactory assurance” of notice by demonstrating that the party has made a good faith effort to provide notice to the individual whose information is sought, that the notice included sufficient information about the litigation or proceeding in which the protected health information is requested, and that the time for the individual to raise objections has elapsed without any objections being filed or any objections have been resolved by the court consistent with disclosure. 45 CFR §164.512(e)(iii). “Satisfactory assurance” of a qualified protective order (QPO) is received if the parties to the dispute giving rise to the request for information have agreed to a QPO and have presented it to the court or if a QPO has been requested from the court. 45 CFR §164.512(e)(iv). A QPO is either a court order or stipulation of the parties that prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which the information was requested, and requires the return to the covered entity or destruction of the information at the end of the litigation or proceedings. 45 CFR §164.512(e)(v).
45 CFR §164.152(f) sets the standard for disclosures for law enforcement purposes, allowing a health care provider to disclose protected health information to a law enforcement official if it is in compliance with and limited by the requirements of a court order or court-ordered warrant or a subpoena, summons issued by a judicial officer, or a grand jury subpoena. 45 CFR §164.512(f)(1)(ii). If an administrative request for protected health information is made, the information sought must be relevant and material to a legitimate law enforcement inquiry and the request must be specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought. 45 CFR §164.512(f)(1)(ii)(C).
It is important to note that under HIPPA, health care providers are permitted to make these disclosures of protected health information to prosecutors and law enforcement officials, but not required. 45 CFR §164.502(a). Therefore, providers may elect to contest the issuance of a court order or subpoena for medical records. Additionally, HIPPA requires health care providers to “make reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.” 45 CFR §164.502(b), so entire medical records should not be disclosed in response to a request for blood test results.
Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve was recently named to “The Best Lawyers in America” in the field of DUI defense. He has also a lifetime charter member of the “Best Attorneys in America – Rue’s Ratings”. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013 and is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense in South Carolina. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.