Criminal: ARMSTRONG V. COM. (COA; 3/31/2006)

DATE:  3/31/2006

CA affirmed Jefferson Circuit Judge Martin McDonald’s grant of a writ of prohibition of mandamus against Jefferson District Judge Donald Armstrong following his order denying the Commonwealth’s motion for Defendant’s medical records.   The Commonwealth is entitled to obtain the Defendant’s blood test results from the University of Louisville Hospital for use in prosecuting him for the offense of driving under the influence (DUI).

The U.S. Secretary of Health and Human Services promulgated regulations pursuant to HIPAA in order to restrict and define the ability of covered entities (health plans, health care clearinghouses, and health care providers) to divulge patient medical records. See Tapp v. State, 108 S.W.3d 459, 462 (Texas Ct.App. 2003). Pursuant to those regulations, as a covered entity, the hospital is allowed, under certain circumstances, to disclose protected health information without the written authorization of the individual or the opportunity for the individual to agree or object. 45 C.F.R.1 164.512. As the regulations pertain to this case, a covered entity may disclose protected health information in the course of any judicial or administrative proceeding in response to a court order. 45 C.F.R. 164.512(e). 1 Code of Federal Regulations.

The pertinent language in the regulation allows covered entities to disclose protected health information:

In compliance with and as limited by the relevant requirements of: (A) A court order or court-ordered warrant, or a subpoena or summons issued by a judicial officer[.]

See 45 C.F.R. 164.512(f)(1)(ii)(A).  HIPAA and the regulations implementing it impose no new requirements where disclosure is sought by court order.  The issue is the Commonwealth’s right to obtain evidence in the form of medical records that are in the possession of a hospital after a defendant’s blood sample has been taken voluntarily in the course of medical treatment. We conclude that our holding in the Osborne v. Commonwealth, 867 S.W.2d 484 (Ky.App. 1993) case gives the Commonwealth this right.

In short, while we decline to hold that courts should order the discovery of medical records in all cases and under all circumstances, it is clear that in this case the circumstances entitle the Commonwealth to obtain the records.  Further, we conclude that the circuit court did not abuse its discretion in granting the writ based on irreparable harm to the Commonwealth because, as the court noted in the Maricle case, the Commonwealth would have no adequate remedy by appeal in the event Rowland is acquitted.

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