Subpoena For Patient Records Upheld

The New York Appellate Division for the First Judicial Department held that the State Board for Professional Medical Conduct had sufficient evidence to issue a subpoena for a doctor’s records of nine HIV patients. The court further concluded that steps to protect confidentiality were appropriate:

In recognition of the need for confidentiality in this matter, anydisclosure order must provide for redactions of material that is notnecessary for the conduct of the investigation and must otherwisecomply with § 2785(6). At this preliminary stage, the redacted materialwould include the names and identifying information of the patientswhose files are sought (their files can be identified by code), as wellas the names and identifying information of other individuals whosenames might appear in the file. We caution, however, that the redactionof the names at this stage of the investigation should not be construedto mean the names are to be permanently redacted. There may be a pointin the future when the needs, or the results, of the investigationwarrant disclosure of certain identities to the OPMC by court order.Respondent also proffers no reason why personal information such assexual history should be disclosed.

Furthermore, notwithstanding the apparent anomaly in thestatute and because the records now are being provided by court orderin response to a motion to compel, we direct that each of the ninepatients whose files are being sought shall be given the opportunitybefore the court to submit any objections to the release of certaininformation in his or her file, and to request appropriate redactions.In weighing such objections the court must be mindful to balance thepatients’ privacy concerns with the nature of the investigation itself,which involves serious allegations.

(Mike Frisch)