We expect privacy in our medical records. Those records contain sensitive personal information about our health. For this reason, health care providers generally cannot share our medical records with others. But what if a police officer wants a person’s medical records? Suppose, for example, a person involved in a motor vehicle accident is treated at a hospital, and the hospital records contain evidence showing the patient was the driver and had a certain blood alcohol concentration? Can a police officer obtain those records from the hospital?
Confidentiality and Federal Exceptions for Law Enforcement
For a medical provider to disclose a patient’s protected health information to a third party, the patient’s written authorization is required by the Health Insurance Portability and Accountability Act (HIPAA) and Title 45-Section 164.512 of the Code of Federal Regulations (CFR). However, an exception in HIPAA and the CFR permits a medical provider to disclose health information to a law enforcement official in response to a subpoena or a judicial warrant. In Ohio, it is common for law enforcement officials to subpoena the hospital records of a patient suspected of DUI (called ‘OVI’ in Ohio).
Ohio Exceptions for Law Enforcement
Ohio law contains two exceptions for disclosing protected health information to law enforcement. First, Ohio Revised Code section 3798.04 authorizes disclosure when it is permitted by Title 45 of the Code of Federal Regulations. Second, Ohio Revised Code section 2317.02 permits a health care provider to supply law enforcement with records of “the results of any test administered to the specified person to determine the presence or concentration of alcohol, a drug of abuse, a combination of them, a controlled substance, or a metabolite of a controlled substance”. To obtain such records, a law enforcement officer need only provide a written request and does not need to issue a subpoena. In Ohio, it is common for law enforcement officials to obtain these test results by submitting a written request.
Constitutional Considerations
Even if the disclosure of protected health information to law enforcement is permitted by federal and state laws, the disclosure may be prohibited by the United States Constitution and the Ohio Constitution. The applicable constitutional provisions are the prohibitions against unreasonable searches and seizures contained in the Fourth Amendment to the United States Constitution and Article I Section 14 of the Ohio Constitution.
To challenge the disclosure of medical records to law enforcement, a patient must have a reasonable expectation of privacy in the medical records. In Ferguson v. City of Charleston, the United States Supreme Court concluded a patient reasonably expects that a hospital will not share medical records without her consent. That expectation of privacy applies to an OVI suspect.
As a patient has a reasonable expectation of privacy in her medical records, the medical records can only be obtained by a search warrant or a recognized exception to the search warrant requirement. There is no recognized exception for the medical records of an OVI suspect. In State v. Clark, one of the few Ohio cases to address this issue, the Third District Court of Appeals stated, “prior to obtaining such medical records, a law enforcement officer must comply with the warrant requirement of the Fourth Amendment.”
Conclusion
In Ohio, it is not uncommon for law enforcement officers to obtain an OVI suspect’s hospital records by subpoena or written request, without a search warrant. Defense counsel representing a client in such a situation would be wise to argue the hospital records are not admissible in trial because they were obtained in violation of the federal and state Constitutions.
Addendum
After this article was published, Ohio’s Tenth District Court of Appeals decided a case involving this issue. On August 8, 2023, the Court issued the decision in State v. Rogers. In Rogers, the Appellate Court concluded a warrant is necessary to obtain the medical records of an OVI suspect. The Court further concluded that police officers cannot objectively and reasonably rely on Ohio Revised Code section 2317.02 to obtain such records. Therefore, if a suspect’s medical records are obtained without a warrant, the appropriate remedy is to exclude the records from evidence at trial.
About the Author: Shawn Dominy is a leading OVI lawyer in Ohio and the founder of the Dominy Law Firm in Columbus, Ohio. He can be reached through his law firm’s website: Dominy Law Firm.
