You know that blood test your doctor ran as part of your wellness check? The state can subpoena the results.

I came across a case in Texas on FourthAmendment.com that gave me food for thought.  From Owens v. State 2013 Tex. App. LEXIS 13767 (Tex. App. – Houston (1st Dist.) November 7, 2013):

In State v. Hardy, the Texas Court of Criminal Appeals held that the State’s subpoena of the results of blood tests conducted by private medical personnel solely for medical purposes did not violate the Fourth Amendment. State v. Hardy, 963 S.W.2d 516, 527 (Tex. Crim. App. 1997). The facts in this case are similar to those in Hardy. Here, the trial court found that (1) the police officer did not suggest the blood draw or exert any influence over the hospital staff; and (2) the blood draw was taken solely for medical purposes. Because private actors conducted the blood draw and blood tests, the hospital staff’s blood draw and test of it does not violate the Fourth Amendment. See Hardy, 963 S.W.2d at 526. Although the State’s later subpoena of the blood tests is a state action, the request for records does not violate Owens’ reasonable expectation of privacy. Id. at 527. We hold that the Fourth Amendment does not bar the admission of Owens’ blood test results.

Some savvy readers may think, “Well, sure, that makes sense.” But I was thinking about whether patients might avoid treatment or wellness checks if they feared that at some point, the state might subpoena their lab results.  A subpoena is a lower standard than a warrant based on probable cause.  Do we want states to be able to just subpoena the results of psychiatric evaluations on private citizens seeking help from private psychiatrists? Or does the Texas opinion only apply to blood tests and physical examinations but provide greater protection for mental health records? And have courts in other states reached the same conclusion that such subpoenas do not violate the Fourth Amendment?

The issue for the courts may be the reasonable expectation of privacy under the Fourth Amendment, but the issue for patients may be the confidentiality of the doctor-patient relationship. Yes, our privacy practice notices under HIPAA give some sense of required or permitted disclosures, but I’d venture to say that most patients do not give much thought that some day, the state might just subpoena their medical or mental health records.

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