In Re Search Warrant For Medical Records Of C.T.
| Decision Date | 06 May 2010 |
| Docket Number | No. 2009-208.,2009-208. |
| Citation | 999 A.2d 210 |
| Parties | In re Search Warrant for Medical Records of C.T. |
| Court | New Hampshire Supreme Court |
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Orville B. Fitch II, acting attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Sheehan Phinney Bass + Green, P.A., of Manchester (James Q. Shirley and another on the brief, and Mr. Shirley orally), for the defendant.
The defendant, Exeter Hospital, Inc. (Hospital), appeals the November 24, 2008 order of the Portsmouth District Court ( Gardner, J.) requiring the Hospital to turn over the medical records of C.T. pursuant to a search warrant. Although the Hospital complied with the warrant, it seeks clarification of its obligations in the future to produce a patient's medical records in response to a search warrant without the patient's authorization or consent. We affirm, but set forth additional procedures to be followed when the State seeks privileged medical records by search warrant.
The record evidences the following facts. At approximately 1:00 a.m. on November 19, 2008, Trooper Brian Gacek of the New Hampshire State Police received a call to investigate a single-vehicle accident in South Hampton. The driver, C.T., had failed to negotiate a curve, and had driven off the road into a stone wall. C.T. appeared intoxicated. He was bleeding from his face, but standing on his own. After receiving treatment at the scene, C.T. was taken to the Hospital for further evaluation and treatment, where his blood was drawn in connection with his care. C.T. was subsequently transported to the Rockingham County jail. Later that morning, to permit proper care of C.T.'s medical needs, the Hospital called the jail and advised jail officials that C.T. had a broken ankle.
C.T. was charged with several offenses, including aggravated driving while intoxicated causing a collision that resulted in serious bodily injury. See RSA 265-A:3, I(b) (Supp.2009). Trooper Gacek applied to the district court for a search warrant, submitting an affidavit reciting the foregoing facts and asserting that a broken ankle constitutes serious bodily injury. The search warrant application sought blood samples and associated toxicology reports, as well as medical records generated during C.T.'s treatment at the Hospital on the morning of November 19. The district court granted the warrant application.
The trooper served the warrant on the Hospital's laboratory and medical records personnel on November 19 after 10 p.m. Although the blood test and laboratory results were made available immediately, the Hospital's medical records attendant told Trooper Gacek that the Hospital normally did not gather medical records at that late hour. The trooper indicated to the attendant that there was “no hurry” because he did not need the medical records right away. Counsel for the Hospital was not able to reach Trooper Gacek until November 24, the day the State filed an Ex Parte Request for Finding of Contempt and Order to Produce. The Hospital produced the subject records the same day, but subsequently objected to the State's request and moved for an order prohibiting the State from routinely using search warrants to obtain patient medical records. The district court ordered the Hospital to comply with the search warrant, but did not grant the State's motion for contempt. The Hospital's motion was denied.
On appeal, the Hospital argues that the trial court erred in requiring it to produce C.T.'s medical records. Relying substantially on In re Grand Jury Subpoena (Medical Records of Payne), 150 N.H. 436, 839 A.2d 837 (2004), the Hospital first asserts that a search warrant issued ex parte deprives the Hospital and its patients of notice and an opportunity to contest production of such records. It maintains that it has statutory and ethical obligations to safeguard its patients' confidential records, and contends that issuance of a search warrant for such records places it in an untenable position: it must either turn over the records and violate its obligations to its patients, or refuse to provide the records and face contempt charges. The Hospital argues more broadly that search warrants are not an appropriate means for the State to obtain medical records because, in contrast to other types of evidence commonly secured by search warrants, medical records are not susceptible to concealment or destruction and therefore their production is more properly sought by subpoenas duces tecum. The urgency of a search warrant, it argues further, disrupts the Hospital's operations, and requires unnecessary emergency review and response. Relying on Payne, the Hospital asserts that obtaining search warrants for medical records improperly relieves the State of its obligation to demonstrate a lack of alternative sources for the evidence it seeks. It further contends that an opportunity to object prior to disclosure is critical because post-disclosure relief, including preclusion of admissibility, is insufficient: the chilling effect on physician-patient communications would already have occurred. Thus, the Hospital argues that when the State seeks privileged medical records, the protections we set out in Payne should be required.
The State first counters that the case is moot. The State further argues that because a warrant is issued only after an independent magistrate finds probable cause to believe the records contain evidence of a crime, and because physicians have a statutory duty to report any injury the physician “ believes to have been caused by a criminal act,” RSA 631:6 (2007), the physician-patient privilege is abrogated. The State also maintains that a search warrant may be challenged only after it is executed, and therefore a hospital that produces medical records in response to a search warrant faces no civil liability as a result of compliance. The State asserts that because the legislature has not modified either the privilege statute or the warrant statute to provide protections for privileged materials sought by a search warrant, privileged materials are no different from other materials subject to production in response to a search warrant. It contends that the procedures governing search warrants are more than sufficient to protect patient confidentiality in the criminal prosecution context, and thus, no protections are required beyond the magistrate's finding of probable cause. In sum, the State asserts that search warrants trump the protections that Payne held applicable to the physician-patient privilege in the context of grand jury subpoenas.
We first reject the State's suggestion that we should dismiss the Hospital's appeal as moot because the documents have been produced. The State itself points out that a warrant may be challenged only after its execution. By its pleadings, the Hospital properly preserved its objection to the trial court's order requiring production of C.T.'s medical records. The Hospital's compliance with the search warrant and the subsequent court order does not render this appeal moot. See, e.g., In re Subpoena Duces Tecum, 228 F.3d 341, 345 (4th Cir.2000); In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 853 (9th Cir.1991).
This case presents an issue of first impression in New Hampshire: how to resolve the tension between the well-established law governing search warrants and the statutory protection afforded the physician-patient privilege. A search warrant is “[a] judge's written order authorizing a law-enforcement officer to conduct a search of a specified place and to seize evidence.” Black's Law Dictionary 1470 (9th ed. 2009). “We have interpreted part I, article 19 [of the New Hampshire Constitution] as requiring an objective determination of probable cause by a neutral and detached magistrate,” as a prerequisite to issuance of a search warrant. State v. Canelo, 139 N.H. 376, 380, 653 A.2d 1097 (1995) (quotation and citations omitted). “To establish probable cause, the affiant need only present the magistrate with sufficient facts and circumstances to demonstrate a substantial likelihood that the evidence or contraband sought will be found in the place to be searched.” State v. Zwicker, 151 N.H. 179, 185, 855 A.2d 415 (2004). A magistrate may issue a warrant allowing police “to search for and seize any property which is ... [e]vidence of the crime to which the probable cause upon which the search warrant is issued relates.” RSA 595-A:1 (2001).
The State cites State v. Skinner, 10 So.3d 1212 (La.2009) King v. State, 276 Ga. 126, 577 S.E.2d 764 (2003), State v. Nelson, 283 Mont. 231, 941 P.2d 441 (1997), and Farrall v. State, 902 So.2d 820 (Fla.Dist.Ct.App.2004), for the proposition that obtaining a search warrant affords greater procedural protection than issuing a subpoena, and, therefore, no additional protections are required. All four cases, however, center upon a patient's asserted constitutional right to privacy in medical records. This case does not raise that issue. Rather, we address here the interplay between the law governing search warrants and the statute governing the physician-patient privilege.
The privilege “was created in our State by statutory enactment in 1969, Laws 1969, ch. 386, and has been incorporated into the rules of evidence N.H. R. Ev. 503.” State v. Elwell, 132 N.H. 599, 603, 567 A.2d 1002 (1989) (). “By creating the physician-patient privilege, the legislature sought to protect patient health by encouraging patients to fully disclose all information about their injuries or ailments to medical providers, however personal or embarrassing, for the purpose of receiving complete treatment.” Payne, 150 N.H. at 439, 839 A.2d 837. “[The physician-patient] privilege belongs to the patient, who may prevent the physician from revealing statements whose confidentiality the patient wishes to...
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