Public Health Law Map - Beta 5 - Medical and Public Health Law Site

should include a signed release by the patient. If the attorney is requesting records
for persons other than his or her client, the physician may want to ask his or her
own attorney to investigate the validity of the request. In cases that involve records
with special legal protection (such as patients in a substance abuse treatment
program) it may be necessary to request that the court deny (quash) the subpoena
or restrict access to the records. The court may order that all patient identifiers be
removed, or that the records be given to the judge, rather than the requesting
attorney.
3. Objecting to Civil Discovery
Medical care practitioners frequently receive questionable discovery requests,
especially subpoenas for medical records. These should not honored unless they
include a signed release from the patient. If there is no release, the health care
practitioner should contact his or her attorney to review the request. In institutional
settings, all discovery requests should be sent to the institution’s attorney. If the
subpoena is improper, the attorney can ask the judge to cancel it. The judge may
quash it—rule that the request need not be complied with—or, more commonly,
modify the request to limit the information that is provided. If the request is from a
law enforcement agency, the medical care practitioner should contact an attorney at
once.
Since the latitude for discovery is very broad, judges will generally grant most
requests that do not involve privileged information or unnecessary access to
information about uninvolved third parties. The trial judge controls the discovery in a
case through the discretion granted in the rules of procedure for the court’s
jurisdiction. In theory the judge should be involved in discovery only in the rare
situation of a request for information that is not admissible and has no chance of
leading to admissible information. Traditionally, defense attorneys would contest
every discovery order to inconvenience the opposition and delay the trial. The federal
courts and most states now try to limit this dilatory practice, but this has problems as
well because it can be difficult to ensure that a case has been thoroughly investigated
when the judge is pushing the case to trial.
4. Criminal Discovery
The allowable scope of discovery by defendants is much more limited in criminal
cases. This is rationalized by the high burden of proof that the prosecutor must meet:
even if defendants do nothing in their defense, the state will still lose unless it
convinces the jury of the defendant’s guilt beyond a reasonable doubt. Under federal
law, the defendant need not provide any testimony to the prosecutor unless the
defendant wants to raise a defense of mental incapacity, alibi, or governmental
authority. The courts and legislatures are also concerned with the reluctance of
witnesses to testify if they fear retaliation. There is also the possibility that if
defendants in some cases know before about adverse testimony before trial, they
would attempt to suborn perjury—get the witnesses to lie or find other persons to lie
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