Health care providers are often confronted with subpoenas or other legal requests to produce the medical records of their patients. Until recently, Maryland afforded little protection to the patients whose records are sought.
Effective July 1, 2005, however, the applicable Maryland statute was amended to conform to the more stringent requirements of the federal Health Insurance Portability and Accountability Act (HIPAA). Accordingly, Maryland health care providers need to be alert to the significant changes in the law that apply to their disclosure of medical records.
Prior Maryland law only required that a party seeking medical records in civil litigation certify to the health care provider that a copy of the subpoena was served on the patient or his or her legal representative. The law provided no grace period for the patient to object before the records could be produced.
A. New Requirements
Now, medical records cannot be released by a health care provider in response to a subpoena, unless one of the following is given to the provider with the subpoena:
1. Written assurance from the party seeking the records that either: (a) the patient or his or her legal representative has not objected to the disclosure of the medical records, and 30 days has elapsed since the notice of the subpoena was sent to such person; or (b) the objections of such person have been resolved, and the request for medical records is in accordance with that resolution; or
2. Proof that service of the subpoena on the patient or his or her legal representative has been waived by a court for good cause; or
3. A copy of an order entered by a court expressly authorizing disclosure of the designated medical records.
B. Paper Trail
To make disclosures under number 1 above, the health care provider must also receive evidence that the patient received, by certified mail, the following documents at least 30 days before the records are disclosed:
1. The subpoena, summons, warrant or court order seeking or requiring production of the medical records;
2. A copy of the pertinent section of the Maryland Medical Records Act, and;
3. A notice in a form prescribed by the law advising the patient of his or her rights under the law, including the right to object to the subpoena or court order.