Ali Eichhorst 1-30 Sharpnack
(Judge J. David Holt, Greene Superior Court, reversed & remanded)
- Motion to suppress the results of hospital’s blood alcohol test obtained with investigatory subpoena duces tecum should not have been granted.
- This case seems to extend Hannoy’s declaration of no expectation of privacy in hospital blood test results to a defendant’s emergency medical records. Neither physician- patient privilege nor HIPPA will protect those records from a subpoena, but maybe it’s just dicta.
- And if there is a violation of HIPPA (& physician-patient privilege), suppression in the criminal case is not necessary, since there is a civil remedy.
FACTS:
In the early morning hours of April 15, 2006, the defendant was driving a vehicle that was in a one –car crash. It killed the passenger, the defendant’s young sister. The driver was ejected during wreck, but her arm was pinned under the inverted vehicle. Greene County Sheriff’s Deputy Jeremy Inman was dispatched to the scene, but did not interact with the driver who was treated and transported to the hospital. He did ask another officer to go by the hospital and ask for a blood draw.
The doctor who examined the defendant in the ER noted she was loud, uncooperative and smelled of ethanol. He ordered lab tests and x-rays, as part of the medical treatment, despite her repeated refusal of medical care. Because he was administering emergency medical care to an intoxicated, possibly severely injured patient, the doctor ordered a blood alcohol test. He testified that intoxication can impair a patient’s ability to describe pain and their ability to consent to treatment. It was discovered later, that the defendant did have a fractured ankle, a relatively minor injury.
The nurse drew blood for the hospital lab tests and she also drew a vial for the police. The result of the (hospital?) blood test was .276. The state agreed to the suppression of the police result. Deputy Inman retrieved the police vial from the nurse and claimed she told him the defendant smelled like alcohol, and said she had been drinking. The nurse did not allow the deputy to talk to the defendant. The nurse denied making these statements, but later testified the defendant did smell like alcohol. Both the medical order and blood draw were noted in the defendant’s medical chart.
Three days later the state filed a motion for issuance of a subpoena duces tecum to obtain the defendant’s medical records on the day of the crash. The motion noted, “The law enforcement officer who investigated the accident has reasons to believe that Eichhorst had been consuming alcoholic beverages prior to the accident.” This motion was granted and the hospital was ordered to produce, “Any and all medical records (including test for blood alcohol level and drug screen) on Ali Aichhorst (the defendant) …treated on or about April 15, 2006.” The hospital complied producing the defendant’s medical records including the blood alcohol test.
DISCUSSION:
This case extends Hannoy’s declaration of no expectation of privacy in hospital blood test results to a defendant’s emergency medical records. If you’ve been in a fatal accident physician/patient confidentiality does not protect your medical records if the investigating officer thinks you’ve been drinking. Furthermore, you have no ability to refuse medical treatment if you are intoxicated. The doctor can force a medical blood draw, and the prosecutor can get access to all your medical records, including the test result with a subpoena.
As long as the doctor is in charge and not the cop, physician-patient privilege won’t protect your emergency medical records. The officer can’t force a police draw, but an ER doctor can force a medical draw as long as the doctor is in charge of the order. Again access to all your ER records, including the blood result is available through a subpoena. Under these circumstances physician/patient privilege just doesn’t seem to exist.
IC 9-30-6-6(a) and Hannoy 789 N.E.2d 977 (ia 03) in conjunction with the implied consent law abrogates physician-patient privilege to hospital blood results (already in existence) in criminal investigations, because there is no expectation of privacy in the blood results. But in Hannoy the defendant consented to the treatment. Here the defendant refused treatment. The appellate court found that due to the emergency situation and the defendant’s intoxication consent to treatment was not necessary. The court left it to the doctor to decide the medical necessity of the forced treatment and blood draw. The court did not want to second-guess a doctor regarding a medical call. The defense argument that the scope of the subpoena was overly broad failed in part because the appellate court found no expectation of privacy in the medical records. It cited Hannoy for this proposition, but Hannoy only dealt with the blood test results, other medical records were not at issue there. It’s an extension or bootstrap of that case.
HIPPA:
The defense noted IC 9-30-6-6(a) and Hannoy predated HIPPA, and were not HIPPA compliant. The appellate court agreed that HIPPA does protect the transmission of medical information without patient authorization, but noted the exception of a court order. It was undisputed the records were obtained by the use of a subpoena duces tecum. Under Oman 737 N.E.2d 1131 (Ind. 2000) an investigatory subpoena need only be reasonable under the 4th Amendment. It does not need to meet probable cause. A subpoena is reasonable if it is:
- relevant in purpose to a valid criminal investigation;
- sufficiently limited in scope; and
- specific in directive so that compliance will not be unreasonably burdensome.
#2 & 3 An overly broad subpoena may not result in suppression of a blood result, especially if the hospital narrows the scope when it complies. The best remedy to an overly broad subpoena is to object before the hospital complies. Here the subpoena did not request medical records generally but limited it to treatment on or about the crash date. So, the appellate court found it was sufficiently limited in scope and specific in directive.
#1 Relevant in Purpose:
If there is no proof of alcohol use being involved in an accident, a subpoena seeking a blood alcohol result would be irrelevant. In other words, it is the evidence of alcohol or drug use that makes the subpoena relevant to an owi (accident) investigation. In Forbes 810 N.E. 2d 681 (Ind. 2004) the court disagreed with the contention that little or no evidence that alcohol was involved in the accident made the subpoena irrelevant, because the trooper noticed the stench of alcohol at the crash scene, and alcohol containers were in plain view. Additionally, witnesses saw the defendant throwing beer cans out the window.
In Oman a firefighter crashed a vehicle while on duty. Due to an anonymous tip that Oman tested positive for marijuana, the police sought the employee mandated test results with a subpoena. It’s interesting to note that the Oman court said that if there was evidence that this anonymous tipster breached confidentiality, then the defendant would have been entitled to suppression and/or a civil remedy against the tipster.
Here Deputy Inman never smelled alcohol, and saw no signs of alcohol use. He claimed the nurse spilled the beans about alcohol use by the defendant. The nurse denied that. Any statements by the nurse would have been a HIPPA violation, (and a violation of physician-patient confidentiality). If they are disregarded, the subpoena is irrelevant in purpose, because there was no other evidence of alcohol use. The appellate court would not disregard them. HIPPA only provides for a complaint with the Office of Civil Rights. HIPPA itself, contains no suppression remedy. The appellate court refused to suppress the blood results.