If you have been involved in a San Diego DUI accident, you may have been taken to a hospital for medical treatment. At the hospital, in the course of treatment, you possibly made reported statements and/or your blood was drawn.
What immediate steps may be taken by a San Diego DUI Attorney to possibly stop legal authorities from using the reports or your blood test against you in a San Diego DUI case?
You will need San Diego criminal defense attorney assistance to try to prevent the Prosecutor &/or DMV from obtaining the blood test results or emergency personnel reports.
You want your medical records to be kept private. You would not have signed any release of information form to get treatment if others could access your private information freely. You may want to revoke any prior authorized release, and forbid the release of any information.
Why do nothing, or put out a fire with gasoline? San Diego DUI Lawyer help is available.
The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) is the main federal law tool protecting one’s private medical information.
There may be threshold questions of: (a) whether you or the institution in possession of the medical information is covered by HIPAA; and (b) whether the information at issue constitutes protected health information.
When a HIPAA violation is established, it may be possible to seek exclusion of the evidence on the basis of Fourth or Fourteenth Amendment violations as well as a remedy to prevent abuse of the discovery process by a party to the litigation.
To assist, a San Diego DUI criminal defense lawyer could ultimately write a letter similar to the following sample:
San Diego Hospital (name)
Attn: Risk Management
San Diego, CA
Re: (Client’s Name) Patient # ( )
Account # ( )
Dear Sir or Madam:
Please be advised that I represent (name of client) (date of birth: ) in a criminal matter resulting from an incident that occurred on (date). Please be further advised that my firm’s representation is limited to the defense of (client’s) criminal matter.
(Client) may retain civil counsel to address the issues that will be discussed herein. If so, I am certain the civil attorneys will be in contact with you shortly.
On (date), (client) was involved in a motor vehicle accident in San Diego, and was taken by ambulance or paramedics to (name of hospital or medical center) in San Diego. My client was admitted to your emergency room and treated by Doctor (name), and the attending staff.
During the course of (client)’s medical treatment, a blood sample was obtained for diagnostic and/or treatment purposes. The sample analyzed was part of (client)’s treatment, and a blood alcohol concentration may have been revealed. At no time prior to the blood draw or analysis was (client) under arrest for driving under the influence of alcohol, nor had there been any judicial proceeding, subpoenas, protective orders or written requests from another party to (name of hospital or medical center) to secure (client)’s confidential health care information. Most importantly, at no time did (client) consent to the sharing of ANY of her confidential medical information by your facility with law enforcement.
Nonetheless, a member of (name of hospital or medical center)’s emergency room apparently cooperated with the (name of law enforcement agency) during (client)’s medical treatment.
Based on the confidential information obtained by (name of hospital or medical center) during their care and treatment of (client), any subsequent disclosure of the blood would be unauthorized.
As I am sure you are aware the Health Insurance Portability and Accountability Act (HIPAA), established privacy and confidentiality laws regarding a patient’s health information. See, 42 U.S.C. sections 1320d, et seq. Following the adoption of that Act, the Department of Health and Human Services adopted regulations to implement HIPAA.
Simply put, pursuant to 45 CFR 164.512, subsections (e) and (f), (name of hospital or medical center) is not and was not permitted to disclose (client)’s confidential medical information to anyone, including law enforcement, unless certain very strict conditions had been met.
Subsection (e) provides for disclosure of a patient’s confidential medical information without the patient’s consent and without a judicial proceeding. Under those circumstances, disclosure can ONLY be made upon the health care provider’s receipt of a court order or a qualified protective order or upon a clear showing that the patient was given notice by the party seeking the records, an opportunity to object, and that either no objection was made or that an objection was made and resolved.
(Client) was never advised that any law enforcement agency was seeking any of her confidential medical information, so there was no opportunity for her to object thereto. Nor did (name of hospital or medical center) receive any sort of court order or protective order authorizing disclosure of (client)’s confidential medical information obtained by (name of hospital or medical center) during their care and treatment of (client).
Subsection (f) provides for disclosure of a patient’s confidential medical information to law enforcement: Specifically, that subsection states:
(f) Standard: Disclosures for law enforcement purposes. A covered entity may disclose protected health information for a law enforcement purpose to a law enforcement official if the conditions in paragraphs (f)(1) through (f)(6) of this section are met, as applicable.
A review of the above-referenced sections illustrates that there are and were absolutely no grounds warranting (name of hospital or medical center)’s disclosure of (client)’s confidential medical information. Moreover, I would direct you to subsection (f)(2)(H)(ii), which specifically states that unless except as otherwise permitted, and only for cases involving the identifying marks of a suspect, fugitive, material witness or missing person, a covered entity may not disclose any protected information related to the individual’s DNA or DNA analysis, dental records, or typing, samples of body fluids or tissue.
As indicated above, (client) may retain civil counsel to address the issues of any intrusion upon her privacy rights and protections by (name of hospital or medical center).
The purpose of this letter is to convey to (name of hospital or medical center) that my client, (client), has not consented at any time, nor does she consent at any time to the release of ANY information, including lawfully protected personal health information obtained by or used in relation to any care and treatment provided by (name of hospital or medical center) on or about (date), to any person or entity for any purpose, other than to insurance companies for the limited purpose of securing payment, and in that case only such information that is minimally necessary to secure such payment.
Additionally, pursuant to both State and Federal law, please consider this as (client)’s demand that if (name of hospital or medical center) receives any requests, subpoenas or court orders requesting ANY of (client)’s legally protected medical records or any requests for any documentation associated with (client)’s blood alcohol analysis, including but limited to requests for calibration records, maintenance records and/or declarations or testimony in support thereof, my office be notified immediately prior to the release of any of the aforementioned information so that I may take all necessary measures to ensure that the process is valid and that disclosure is actually required.
If (name of hospital or medical center) receives any kind of document purporting to be any sort of process from the State of California or any of its political subdivisions, I am hereby advising you that I believe such document to be unlawful and inconsistent with California law as well as the relevant portions of HIPAA, and will object on (client)’s behalf to (name of hospital or medical center)’s compliance with such requests upon proper notice and opportunity to do so. Please be advised my objections further apply to any requests from the San Diego City Attorney’s Office and/or the San Diego County Office of the District Attorney.
Thank you in advance for your cooperation. If you have any questions, problems or comments, please do not hesitate to contact me.
Attorney for (client)
[Please note: Do NOT use this form or sample letter unless you are an experienced criminal defense lawyer. Many legal considerations must be first be determined. This sample is not intended to be legal advice to be relied upon in any fashion. It is merely an example of a sample letter which may be written by an attorney if appropriate under the facts and circumstances. Contact a San Diego DUI criminal defense attorney.]