Can medical records become public record during a trial?

March 23, 2014 12:37 PM

Help me make an informed decision about a plot point in a work of fiction: If your medical/psychiatric records are subpoenaed in a criminal court case, do they become public record?

Let's say I plead not guilty by reason of insanity in a murder, or I'm a defendant in a rape case.

Does my medical or psychiatric evidence then become a matter of public record along with the rest of the court's proceedings? Or would a judge seal those records? If so, are they routinely sealed or only under special circumstances? Would I be able to get assurance that my records were going to be sealed before I went to trial?

What if the records date back to when I was a minor, even if I'm no longer a minor at the time of the trial?

I realize this probably varies state by state, but that's OK. Just share what you got.

posted by elizeh to Law & Government (9 answers total)

The defendant's attorney would make a motion in court asking that the judge consider the records confidential. The judge would then decide whether to grant that motion or deny it. The judge's decision likely would hinge on a variety of different factors, including the nature of the records, the age of the defendant, etc.
posted by dfriedman at 1:08 PM on March 23, 2014

I work in privacy legislation, but in Australia. It seems like here subpoenaed documents are presumed confidential, but various parties involved and the media can request to view them and it's up to the judge. Health records here have their own privacy protection act (I suspect it's the same in the States), and I imagine it would be very rare for personal info of that sort to be made 'public', especially information of a minor or from when you were a minor. Here it's the Health Records and Information Privacy Act.
posted by jrobin276 at 1:32 PM on March 23, 2014

Oh, and no one should ever assure or promise anything. They will just quote legislation at you.
posted by jrobin276 at 1:39 PM on March 23, 2014

Medical records are routinely sealed.
posted by sevensnowflakes at 1:43 PM on March 23, 2014

In the U.S., the applicable privacy law is called HIPAA.

some govt info
Wikipedia article

I had annual HIPAA training for five years. I am not a lawyer but: The law indicates that even for things where protected health information can be disclosed, you must disclose "the minimum necessary." In other words, an insurance company asking for records in order to pay medical bills under a policy that covers treatment for accidental injury can only request records related to treatment for covered accidental injury. It cannot make a blanket request for, say, all medical records for the last year, which might inadvertently include treatment for cancer or whatever.

Plus, when I worked in insurance, I could only view stuff I needed to see to do my job. It was a violation of the law to cruise files on record for my personal entertainment. If I shared the info with someone else, it had to be in order to get their professional feedback on how to handle the papers. Sharing it merely to snicker about it could get you fired. Thus, I can believe that medical records in court cases are likely routinely sealed.

In court, presumably that means that in a rape case, you can only request records related to the rape and nothing else. If you are trying to prove insanity, you bring psychiatric records but not other medical records.

However, it would also depend on when your story is set. HIPAA was originally enacted in 1996.
posted by Michele in California at 2:30 PM on March 23, 2014 [1 favorite]

I dealt with Freedom of Information Law requests in NY State for a prosecutor's office. At least on our end, there is a statute to the effect that we can't/won't release medical records to the public.
posted by mlle valentine at 2:30 PM on March 23, 2014 [2 favorites]

The practical answer to your questions is mostly, it depends.

The better question is if the medical records were released, would they be useful in any way to advancing your plot?

In the real world, the answer is usually that medical records are nowhere near as interesting or illuminating reading as the public would believe. Especially in psychiatry, for which the accepted practice seems to be the longer the note, the less information is in it. And they have long notes.

Most doctors in the US operate under the assumption that someone could use the medical record against either them or the patient, so things are fairly cryptic, and plenty of mental health documentation takes great pains to dance around any language you might assume would be automatic, such as indicating a firm diagnosis.
posted by hobo gitano de queretaro at 8:20 PM on March 23, 2014

Response by poster: The plot point revolves around a decision to go to court vs. plead out rather than risk the records becoming public.
posted by elizeh at 12:09 PM on March 26, 2014

It seems to me that you might still choose to plead out, even knowing the record could be sealed. If it is something you don't want ANYONE knowing, then having it before a judge, jury, lawyers, court recorder, etc could still be an undesirable outcome. You know the saying: Three can keep a secret if two are dead. Once all those people know, people often talk, stuff gets leaked to the paper blah blah blah.

So how bad is their dirty little secret that they want covered up? How covered up do they want to keep it?

I saw an interview with a lawyer. He talked about being the legal counsel for a woman during her divorce. Hubby had a very well paid, very public career. He was apparently into kink or something and did not want that known. At the very first meeting, the lawyer had a six foot tall poster version of a salacious photo of the wife from when she was married to the guy (presumably doing whatever it was hubby wanted -- they did not say what the photo showed). They said if it went to court, that would be exhibit A. The husband settled out of court. The wife got everything she wanted.

Granted, divorce records are not necessarily sealed. But how secret is this secret? How badly does the character want it kept secret? And why?

On the flip side, when a woman tried to blackmail Bill Cosby, he went to his wife and told her about the long ago affair, got with the police and showed up with a wire tap (IIRC). He felt his marriage could withstand having this old dirty laundry aired and he was apparently right (at least last I heard it hadn't destroyed his marriage).

Sorry that those are both sexual scandals, having nothing to do with medical records. HTH.
posted by Michele in California at 1:15 PM on March 26, 2014