Can the police use my hospital records after a car accident for a DUI?
The short answer is yes even though there are 25 reasons that they should not. In King v. State, 276 Ga. 126, 577 S.E.2d 764 (2003)(King II), the Georgia Supreme Court approved the use of search warrants as a means of obtaining patient records for purposes of criminal prosecution over a Defendant’s due process right to privacy without notice and a hearing. The King II court allowed medical record search warrants where the search warrant application and form are complete, narrowly tailored and a given a showing of a compelling need. The KIng II court reasoned that the 4th Amendment already took the balance between privacy and law enforcement needs into consideration and the neutral judicial review was all that privacy required. The Georgia Supreme Court was also concerned about what requiring notice and a hearing for medical records might spread to other matters by implication. This was despite the fact that there is no risk of destruction of medical records while the matter was set for a hearing and adequate time for the effected citizen to respond.
This ruling is a perfect example of a the law of unintended consequences. While medical records are undisputedly private, once they are used in court they are public record. In 2004, Rush Limbaugh, famous conservative radio talk show host, was under criminal investigation by police for conduct involving drugs. A search warrant was obtained for his pharmacy records. Limbaugh objected to the warrant arguing that such a fishing expedition was unconstitutional. A Florida court disagreed that any special notice or hearing was required before the issuance of a warrant in the case of medical records. The pharmacy records were widely publicized. After a six year investigation and prosecution all charges were dropped in exchange for physician monitoring and drug screens; however, the mere seizure of his medical records and allegations of doctor shopping by police had most of the world convinced that Limbaugh abused drugs.
Clearly, probable cause for a warrant is not a high enough standard to protect a patient’s right of privacy. In the context of a subpoena or court order, the trial court must intervene giving the patient notice and a hearing where the patient has a chance to argue and assert his/her privacy rights, and giving the court the chance to weigh the state’s interest in disclosure against the patient’s privacy rights. King II should be reluctantly followed only where the facts are identical or over-ruled entirely.
The Hippocratic Oath itself states, in part, “What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account ought to be spread abroad, I will keep to myself, holding such things shameful to speak about.” (Hippocrates, Physician’s Oath, Steadman’s Medical Dictionary p. 579)
Georgia doctors and hospitals are in fact prohibited under state law from disclosing patient information without consent, except under “appropriate court order or subpoena.” OCGA 24-12-1 states:
“ (a) No physician licensed under Chapter 34 of Title 43 and no hospital or health care facility, . . . shall be required to release any medical information concerning a patient except to the Department of Human Resources, its divisions, agents, or successors when required in the administration of public health programs pursuant to Code Section 31-12-2 and where authorized or required by law, statute, or lawful regulation; or on written authorization or other waiver by the patient, or by his or her parents or duly appointed guardian ad litem in the case of a minor, or on appropriate court order or subpoena . . .”
In addition to state law, the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 210 et seq., specifically prohibits hospitals from disclosing patient records without consent or a “court order,” and a search warrant is not a court order requiring the hospital to turn over anything. The supremacy clause requires that hospitals obey the mandates of HIPAA, making their co-operation with a police search unlawful.
Admission of the private medical records of a criminal defendant without consent violates the Defendant’s constitutional right to privacy. Allowing police to use a search warrant to access private medical records may not be procedurally improper, but offering private medical records into evidence without a compelling state interest is unconstitutional.
In King v. State, 272 Ga. 788 (2000)(King I) the Georgia Supreme Court reversed a DUI conviction obtained using private hospital medical records obtained by subpoena. The initial opinion held that the defendant’s constitutional rights were violated by allowing her private records into evidence. The revised opinion reversed on purely procedural grounds, holding that the Constitution required only notice to a patient-defendant and the opportunity to object and be heard before a prosecutor may subpoena private hospital records, including blood alcohol test results.
The second King case (different defendant), involved use of a search warrant to obtain private hospital records instead of a subpoena. King v. State, 276 Ga. 126, 577 S.E.2d 764 (2003). In “King II,” the Supreme Court of Georgia ruled that a subpoena and a search warrant were two different creatures, because a search warrant can be issued only by a magistrate upon a showing of probable cause, obviating the need to provide the defense an opportunity to be heard. The actual invasion-of-privacy issue was not before the court. The holding was later clarified as follows: “King v. State directly addressed the constitutionality of obtaining medical records pursuant to a search warrant. Finding that existing search warrant procedures provide adequate protections for a defendant’s privacy rights under both the Georgia and United States Constitutions, King held that the State does not violate a defendant’s right to privacy or due process in obtaining a search warrant for medical records without notice or a hearing.” Ellis v. State, 275 Ga. App. 881 (2005)(emphasis added)
The state of the law at present is therefore that a search warrant may be used to obtain private hospital blood tests without violating the constitution; however, there is no case holding that the subsequent admission of the seized test results into evidence does not violate privacy rights, and several cases suggest otherwise.
In Doe v. State, 185 Ga.App. 347 (1987), the Court of Appeals of Georgia expressed grave concern about the use of search warrants to obtain medical test results. Rockdale County police had obtained a search warrant to seize blood and urine specimens from the county hospital. The appeal was dismissed as procedurally improper, but in a concurring opinion joined by three others, Justice Banke wrote that the “issuance of the search warrant under consideration in this case was totally inappropriate. What could be more outrageous than the prospect of law enforcement officers rummaging through the confines of a legitimately run hospital in an attempt to locate a blood, urine or tissue sample left behind by a suspect who was once treated there?” 185 Ga.App. at 348 (emphasis added).
In King II, supra, the Supreme Court said “Permitting the State unlimited access to medical records for the purposes of prosecuting the patient would have the highly oppressive effect of chilling the decision of any and all Georgians to seek medical treatment.” 272 Ga. at 792. Even considering the danger of driving under the influence on the public highways, there is no reason to force a choice for those who suspect that they might be DUI to forego blood tests that might be necessary to their health or safety out of fear that they may be incriminating themselves.
While probable cause may exist to support the issuance of a warrant prior to trial, the standard at trial is different. A judicial officer or magistrate only has to decide if there is a reasonable probability that there is evidence of a crime located at the hospital. The judicial officer is not called upon to find that the evidence was either legally or logically relevant to the DUI at issue.
Relevance is a matter for the trial court to decide, and is the proper subject of a motion in limine with an opportunity factual inquiry and legal argument. While a legitimate blood alcohol test run within three hours of driving would be logically relevant in a DUI case, it can still be legally irrelevant and therefore inadmissible.
The test result is not admissible if admitting it violates the defendant’s right of privacy, regardless of its usefulness to the State in proving the charge. A defendant’s right to non-disclosure of medical treatment records outweighs the State’s interest in prosecuting a DUI. This is not an otherwise unsolvable murder case, felony or a matter of national security – it is a misdemeanor traffic case.
The chilling effect created by giving police unlimited access to patient records based on double hearsay would not be limited to DUI cases. Those with drug abuse problems would be in danger of felony prosecution if they went into treatment at a hospital. Those with diseases that carry an unfair social stigma such as AIDS, MS, or mental illness run the risk of their hospital turning over all of their records during a police search for possible DUI evidence. There is no check on that information becoming public. In fact, after the case is over, the police would be required to disclose it to any citizen under the public records act upon reasonable request.
25 Potential problems created by police using Hospital Blood in an DUI prosecution
- Most hospitals do not test the sample for ethanol
- The sample is tested for a by-product enzyme reaction, NADH, which can be found in the sample even when no ethanol is present, i.e., false positive.
- Most hospitals do not test whole blood samples. They test only blood serum which is a whole blood sample that has been centrifuged to remove all of the red blood cells. Serum is not proper for a forensic sample. Whole blood testing is the proper method for forensic testing.
- Serum ethanol results are always higher than a whole blood ethanol sample and can vary up to 150%.
- Hospital blood draw may obtain arterial blood instead of venous blood.
- Arterial blood may be 40% higher in ethanol concentration than venous blood.
- There is no proper chain of custody in a hospital blood sample. There is no way to ensure that a blood sample was not mistakenly switched with another patient.
- Hospitals do not use test tubes with blood preservatives which may result in fermentation resulting in additional ethanol in the sample.
- Hospitals do not use anticoagulant which is required in forensic laboratory testing.
- Sample and testing do not follow the rules required for forensic reliability.
- Hospitals do not follow ISO 17025 laboratory practices required for certified forensic labs.
- Blood samples in hospitals are not stored in secured areas.
- Hospitals do not refrigerate blood immediately after testing which prevents accurate re-testing or confirmation testing.
- No quality control procedures to detect or monitor fermentation of blood samples.
- Hospital blood samples are often not sealed tightly or have a loose stopper which can result in contamination of the blood sample.
- Many times there is no way to determine what phlebotomist drew the blood.
- Hospitals may have used a skin disinfectant with alcohol which can compromise a blood sample for DUI purposes.
- Many times there is no way to determine the courier who delivered the blood to the lab.
- Hospital chemistry analyzers can cause false positives.
- Hospitals do not use an internal standard for accuracy of blood samples.
- Hospitals do not follow forensic quality control guidelines including no positive or negative control runs.
- Hospital blood serum tests for ethanol is plus or minus 25%.
- Hospital blood serum ethanol testing is not performed for legal purpose but only diagnostic medical confirmation purposes which requires less accuracy.
- Hospital treatment should not require you to surrender your legal rights in a criminal investigation
- People made not seek emergency medical care to avoid prejudicing themselves in a criminal case.
George C. Creal, Jr.