Obtaining Medical Records From Out of State Health Care Providers
Adopted: April 16, 2010
Opinion rules that a lawyer may not serve an out of state health care provider with an unenforceable North Carolina subpoena and may not use documents produced pursuant to such a subpoena.
Inquiry #1:
Lawyer represents the Department of Social Services in a county that borders another state. In a particular case, the relevant hospital records are located out of state. Is it ethical for Lawyer to subpoena the medical records under the authority of N.C. R. Civ. P. 45 knowing that the North Carolina subpoena is unenforceable?
Opinion #1:
No. If the North Carolina subpoena is not enforceable out of state, the lawyer may not misrepresent to the out of state health care provider that it must comply with the subpoena. RPC 236 provides that it is unethical for a lawyer to use the subpoena process to mislead the custodian of documentary evidence as to the lawyer's authority to require the production of such documents. See also Rule 8.4(c) (professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).
Inquiry #2:
If the records are subpoenaed and the health care provider complies with the subpoena, may Lawyer utilize the medical records?
Opinion #2:
No. Lawyer may not use documents that were produced in reliance on Lawyer's misrepresentation as to Lawyer's authority to require the production of such documents.