The PEOPLE of the State of New York, v. Johnny MARRERO, Defendant.
Defendant moves to remedy the People's acquisition of defendant's medical records pursuant to a so-ordered subpoena that was issued ex parte, in the absence of a HIPAA release. The motion is granted in part, as follows.
Defendant Johnny Marrero has been indicted for attempted robbery in the first and second degrees (PL 160.15 and 160.10[a], dangerous instrument and physical injury, respectively). The theory of the prosecution is that on March 3, 2020, Marrero, armed with a knife, sliced open the pants pockets of the complainant, who was sleeping on a subway car as it approached an upper Manhattan station. The complainant awoke and attempted to back away, but Marrero allegedly brandished the knife and demanded the complainant's money and wallet. When the complainant again retreated, Marrero allegedly attacked him, biting his arm as the two engaged in a struggle. The complainant was able to exit the car and summon the police. He then witnessed Marrero's arrest. Marrero, who sustained cuts and had blood on his hands, was taken to Harlem Hospital.
Marrero was arraigned in Criminal Court on March 5, 2020. Addressing the People's bail application, the defense counsel challenged the strength of the prosecution's case:
But I think there are some reasons to believe that this is not as clear cut as it looks. Mr. Marrero does actually have some defensive wounds that would be consistent with him having be[en] cut with a knife which would be unusual in a situation where he was the one wielding that knife. I think that there's a lot to explore in this case.
The following day, March 6, 2020, the People submitted a so-ordered subpoena for defendant's Harlem Hospital records to the Grand Jury judge. The Assistant District Attorney's supporting affirmation recounted the People's theory of the crime and defense counsel's arraignment argument that defendant sustained “defensive wounds.” The records were sought “to determine the extent or origin of Mr. Marrero's wounds after his struggle with the complaining witness, which is relevant to Mr. Marrero's intent and the defense of justification.” Although the sequence of the day's events are not clear, the People presented the case against defendant to the Grand Jury on March 6, the CPL § 180.80 day, and obtained the present indictment, which was filed on March 9, 2020.
Defendant eventually received, through discovery, the medical records obtained by the People. On September 22, 2020, defense counsel challenged the propriety of the Grand Jury judge's so-ordered subpoena before a second supreme court justice, to whom this case was previously assigned. After counsel argued that the subpoena violated HIPAA 1 and should not have been procured ex parte, the justice reviewed the supporting affirmation and commented, “I am certain I would have signed [it] as well ․ I am very comfortable with it based on the information provided.” The second justice agreed to consider the matter further if defense counsel submitted her argument in writing. The present motion followed.
In his motion to remedy the purportedly improper issuance of the subpoena, Marrero asks the court for various relief: to direct the People to return the records to the court to maintain them under seal; to bar the ADA who obtained the records from further involvement in the case; and finally to disclose the affirmation submitted in support of the subpoena. The People have since attached the affirmation as an exhibit to their response. In support of the requested relief, the defense cites HIPAA, arguing that there was neither a waiver by defendant nor a “court order” contemplated by that statute, and a breach of the state physician-patient privilege. In response, the People submit that the so-ordered subpoena was in fact a court order, and that defendant waived the state privilege at Criminal Court arraignment by placing his physical condition, more specifically the possibility of a justification defense, in issue.
A health care provider may disclose patient information in compliance with HIPAA with the patient's consent. 45 CFR 164.508 (c). There are several instances, however, in which the patient's authorization is unnecessary, such as public health matters, 45 CFR 164.512(b) and (d); matters involving victims of abuse, neglect or domestic violence, 45 CFR 164.512 (c); law enforcement activities, 45 CFR. 164.512(f); and, as relevant here, “[d]isclosures for judicial and administrative proceedings,” 45 CFR 164.512(e). Subdivision 164.512 (e) expressly permits disclosure “in the course of any judicial or administrative proceeding” in two instances, (e)(1)(i), “[i]n response to an order of a court or administrative tribunal,” provided that the provider “discloses only the protected health information expressly authorized by such order,” and (e)(1)(ii), “[i]n response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if (A) the provider receives assurances of reasonable efforts to notify the individual whose information is sought, or (B) the provider receives assurances that the party seeking the information has made reasonable efforts “to secure a qualified protective order” shielding notice of the request.
In support of its argument that the so-ordered subpoena violated HIPAA because it was ex parte, defendant cites Matter of Miguel M. (Barron), 17 NY3d 37 (2011). In that case, respondent Barron, director of the Department of Psychiatry at Elmhurst Hospital Center, applied for an order under Mental Hygiene Law 9.60 of “assisted outpatient treatment”(“AOT,” colloquially known as “Kendra's Law”) for Miguel M., on the basis of the Miguel's mental illness and likely inability to live safely in the community. At a hearing on the matter, Barron introduced records from two hospitals concerning Miguel's prior hospitalizations. Barron received those records pursuant to a “request,” as opposed to a court order, of which Miguel had no notice. Id. at 40—41. Rejecting application of the “public health” and “treatment” exceptions of 45 CFR 164.512 advanced on Barron's appeal, the court noted “the existence of other exceptions that Barron might have invoked but did not,” id. at 43, namely, disclosure in response to “an order of a court or administrative tribunal,” 45 CFR 164.512(e)(1)(I), or “a subpoena, discovery request, or other lawful process,” 45 CFR 164.512(e)(1)(ii). Id. at 44. The court then opined, in the context of the AOT proceeding at hand, that, “absent extraordinary circumstances,” Barron could not “have obtained a court order requiring disclosure without giving ․ notice.” Id.2 Nor, the court continued, could it discern a policy reason not to give notice.
This case is different in two respects. First, it does not involve records obtained pursuant to an unelaborated “request,” as in Miguel M., or pursuant to an attorney's trial subpoena. Instead, the records were produced pursuant to a judicial so-ordered subpoena, which carries the signature, stamp and authority of the court, and the stated consequence of criminal contempt sanctions for non-compliance. See CPLR § 2308. This court thus disagrees with defendant's core argument that a so-ordered subpoena is an ordinary attorney's subpoena, akin to 45 CFR 164.512(e)(1)(ii)'s “discovery request,” and not a 45 CFR 164.512(e)(1)(i) court order. People v. Olsen, 23 M3d 563, 600 (Nassau Co Dist Ct 2009)(“medical records may be obtained from a provider without a written authorization from the patient only where the disclosure is made pursuant to an order of the court [as in the case of a So—Ordered subpoena], pursuant to 45 CFR § 164.512[e][I], or pursuant to a subpoena which must be accompanied by assurances of notice or protective order pursuant to 45 CFR § 164.512[e][ii][A] or [B]); Matter of Antonia E., 16 M3d 637, 640, 640 fn. 2 (Fam Ct, Qns Co 2007)(construing application for judicial subpoena as involving order of the court pursuant to 45 CFR 164.512[e][i], not [ii] subpoena).
This case concerns a grand jury subpoena, where notice is impractical and potentially ill-advised. Having reviewed the supporting affidavit and arraignment minutes, this court will not overrule, in effect, the two coordinate justices who considered the subpoena proper. However, this court does observe some troubling aspects to the process and questions the necessity for overriding the defendant's HIPAA protections. Contrary to what the Grand Jury judge may have concluded, the counsel's statements at arraignment were equivocal and did not signal a clear intent to raise a justification defense.3 Further, it is not clear from the colloquy at the arraignment that the Marrero intended to testify before the Grand Jury. Although cross grand jury notice was served, the record also reveals that Marrero had a court-related intake appointment scheduled at a conflicting time. Without Marrero's testimony, there would be virtually no possibility of a justification defense at the grand jury stage, no reason for the prosecutor to give the justification charge or, more to the point, to use the subpoenaed records. The People may have been able to clarify through counsel whether Marrero intended to assert the justification defense at that juncture, and whether the defendant indeed intended to testify before resorting to an ex parte records request.
However, even if the judicial subpoena had violated HIPAA, the People should not necessarily be deprived of use of defendant's medical records at trial. Citing People v. Greene, 9 NY3d 277 (2007), which “held that suppression is not required in [a criminal case] where evidence was obtained as a result of a violation of New York's physician-patient privilege,” 9 NY3d at 279, the Miguel M. court found the HIPAA violation before it “very different.” 17 NY3d at 45. “It is one thing,” the court continued, “to allow the use of evidence resulting from an improper disclosure of information in medical records to prove that a patient has committed a crime; it is another to use the records themselves ․ in a proceeding to subject to unwanted medical treatment a patient who is not accused of any wrongdoing.” Id. Because Miguel M. was not accused of a crime or wrongdoing, the privacy interest promoted by HIPAA would not give way to the procedural violation of that law. Here, by contrast, the disputed records were obtained in connection with a grand jury investigation and criminal prosecution of the defendant, and the records are therefore not subject to outright suppression.
CPLR 4504(a), the physician-patient privilege, provides: “Unless the patient waives the privilege, a person authorized to practice medicine ․ shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” The privilege is “purely a legislative creation,” and is not absolute. People v. Sinski, 88 NY2d 487, 491 (1996); Koump v. Smith, 25 NY2d 287, 293 (1969)(Doctor-patient privilege is a creature of statute, for at common law physicians could be compelled to disclose the information they acquired while treating a patient).
Thus, even if this court were to conclude that the Grand Jury judge should not have issued a judicial subpoena, precluding further use of the records would not necessarily be the remedy. The physician-patient privilege is a statutory right only, without constitutional underpinning. People v. Green, 9 NY3d at 281. It serves to regulate the conduct of doctors, hospitals and medical providers, and the remedy of suppression may unduly punish the state for the misconduct of those third parties. Id. Violation of a statute does not, without more, justify suppressing evidence to which that violation leads. People v. Johnson, 27 NY3d 199 (2016).
All parties to litigation must be mindful of the purposes and policies behind HIPAA and the physician-patient privilege, and the limited uses for which medical records may been obtained. While this court will not, as defendant asks, direct the return of the records to the court, and the disqualification of the ADA, it will direct that the People as officers of the court not disclose or disseminate the records further. Any additional issue regarding the admissibility of the records at trial may be raised before the trial judge.
This shall constitute the decision and order of the court.
1. The Health Insurance Portability and Accountability Act (“HIPAA”) of 1996, 42 USC 1320 et seq.
2. The court's seeming application of notice to both (i) “order of a court” and (ii) “subpoena [or] discovery request” in the quoted sentence is dicta, since, as the court stated, the dispositive issue was application of the public health and treatment exceptions alone. It is also contrary to the court's following sentence, which applied the notice or protective order provisions to 45 CFR 154.512(e)(ii)'s “subpoenas and the like,” id. at 44, but not to 45 CFR 154.512(e)(i)'s “order of a court”. And, it is contrary to the remainder of 45 CFR 164.512(e), which further defines reasonable efforts at notification, subd. (e)(1)(iii), and qualified protective orders, subd. (e)(1)(iv) and (v), solely in the context of 45 CFR 164.512(e)(ii), the subpoena and discovery request section. Defendant's argument appears to be not that 45 CFR 164.512(e)(i) and (ii) both require notice or a protective order, but that a so-ordered subpoena falls under (ii), which does require notice.
3. Addressing CPLR 4504(a)'s waiver provision in the context of civil personal injury cases, the Court of Appeals has ruled waivers inapplicable where the defendant simply categorically denied the allegations of the complaint, even if they included intoxicated driving. Dillenbeck v. Hess, 73 NY2d 278, 287 (1989)(for waiver, defendant must “affirmatively assert[ ] the condition either by way of counterclaim or to excuse the conduct complained of by the plaintiff”)(citing Koump v. Smith, 25 NY2d 287, 294 ). In the criminal context, too, courts have concluded that defendants who did not place their medical condition in issue to excuse their conduct did not waive the physician-patient privilege by raising other issues regarding their medical condition or records. People v. Carkner, 213 AD2d 735 (3rd Dept.), app. den. 85 NY2d 735 (1995)(privilege in vehicular homicide case not waived where defendant cited discrepancies in requisition form, and cross-examined nurse who drew blood sample, to contest his identity as the person from whom sample was drawn, but did not put his physical condition in issue); People v. Osburn, 155 AD2d 926 (4th Dept. 1989), app. den. 75 NY2d 816 (1990)(privilege not waived through cross-examination regarding defendant's condition at hospital to show that her consent to blood test taken at police request was involuntary, but not to excuse her conduct or show that her appearance resulted from injuries instead of intoxication). However, where defendants raise physical or mental health issues that might excuse their conduct, however, they waive the physician-patient privilege regarding treatment. People v. Al-Kanani, 33 NY2d 260 (1973)(defendant waived privilege as to psychiatric records once he raised insanity defense at trial); People v. Flores, 40 AD3d 876 (2nd Dept.), lv. den. 9 NY3d 875 (2007)(privilege waived by raising intoxication defense at trial); People v. Gonzalez, 239 AD2d 931 (4th Dept.), app. den. 90 NY2d 893 (1997)(privilege waived in vehicular homicide case when defendant cross-examined police officer who spoke with him at hospital to establish that his appearance was attributable to injuries, not intoxication; People v. Feldman, 110 AD2d 906 (2nd Dept.)(manslaughter defendant waived privilege by cross-examining police officers about his medical treatment to establish that his condition at the scene was due to injuries, not intoxication); People v. Awoshiley, 20 M3d 1136(A)(NY Co Crim Ct 2008)(DWI defendant's “attorney's assertions at the arraignment regarding [defendant's] condition while in the emergency room waived the privilege as to his medical records for that time period, at the very least”).
April A. Newbauer, J.