2009-208, In re Search Warrant for Medical Records of C.T.

The defendant, Exeter Hospital, Inc. (Hospital), appeals the

a. on the brief, and Mr. Shirley orally), for the defendant. Sheehan Phinney Bass + Green, P.A., of Manchester (James Q. Shirley & to press. Errors may be reported by E-mail at the following address: attorney general, on the brief and orally), for the State. Orville B. Fitch II, acting attorney general (Nicholas Cort, assistant

page is: http://www.courts.state.nh.us/supreme. IN RE SEARCH WARRANT FOR MEDICAL RECORDS OF C.T.

2009-208 editorial errors in order that corrections may be made before the opinion goes Portsmouth District Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as warrants, medical records are not susceptible to concealment or destruction

p. 2 because, in contrast to other types of evidence commonly secured by search

warrants are not an appropriate means for the State to obtain medical records face contempt charges. The Hospital argues more broadly that search and violate its obligations to its patients, or refuse to provide the records and

records places it in an untenable position: it must either turn over the records

Counsel for the Hospital was not able to reach Trooper Gacek until November

Hospital’s motion was denied.

confidential records, and contends that issuance of a search warrant for such application. maintains that it has statutory and ethical obligations to safeguard its patients’ the morning of November 19. The district court granted the warrant

there was “no hurry” because he did not need the medical records right away.

search warrant, but did not grant the State’s motion for contempt. The medical records. The district court ordered the Hospital to comply with the prohibiting the State from routinely using search warrants to obtain patient

patients of notice and an opportunity to contest production of such records. It well as medical records generated during C.T.’s treatment at the Hospital on asserts that a search warrant issued ex parte deprives the Hospital and its Subpoena (Medical Records of Payne), 150 N.H. 436 (2004), the Hospital first produce C.T.’s medical records. Relying substantially on In re Grand Jury medical records at that late hour. The trooper indicated to the attendant that On appeal, the Hospital argues that the trial court erred in requiring it to records attendant told Trooper Gacek that the Hospital normally did not gather laboratory results were made available immediately, the Hospital’s medical

had a broken ankle. but subsequently objected to the State’s request and moved for an order Order to Produce. The Hospital produced the subject records the same day,

asserting that a broken ankle constitutes serious bodily injury. The search a search warrant, submitting an affidavit reciting the foregoing facts and

while intoxicated causing a collision that resulted in serious bodily injury. records personnel on November 19 after 10 p.m. Although the blood test and The trooper served the warrant on the Hospital’s laboratory and medical

medical needs, the Hospital called the jail and advised jail officials that C.T. Rockingham County jail. Later that morning, to permit proper care of C.T.’s in connection with his care. C.T. was subsequently transported to the

RSA 265-A:3, I(b) (Supp. 2009). Trooper Gacek applied to the district court for

C.T. was charged with several offenses, including aggravated driving

the Hospital for further evaluation and treatment, where his blood was drawn standing on his own. After receiving treatment at the scene, C.T. was taken to search warrants trump the protections that p. 3 the magistrate’s finding of probable cause. In sum, the State asserts that

the criminal prosecution context, and thus, no protections are required beyond

search warrants are more than sufficient to protect patient confidentiality in response to a search warrant. It contends that the procedures governing materials are no different from other materials subject to production in

protections for privileged materials sought by a search warrant, privileged

modified either the privilege statute or the warrant statute to provide result of compliance. The State asserts that because the legislature has not medical records in response to a search warrant faces no civil liability as a

does not render this appeal moot. Hospital’s compliance with the search warrant and the subsequent court order

A search warrant is “[a] judge’s written order authorizing a law-enforcement

challenged only after it is executed, and therefore a hospital that produces

warrants and the statutory protection afforded the physician-patient privilege.

privilege is abrogated. The State also maintains that a search warrant may be

execution. By its pleadings, the Hospital properly preserved its objection to the State itself points out that a warrant may be challenged only after its medical records, the protections we set out in Hospital’s appeal as moot because the documents have been produced. The to resolve the tension between the well-established law governing search This case presents an issue of first impression in New Hampshire: how

1987, 926 F.2d 847, 853 (9th Cir. 1991). F.3d 341, 345 (4th Cir. 2000); have been caused by a criminal act,” RSA 631:6 (2007), the physician-patient In re Grand Jury Subpoenas Dated Dec. 10, physicians have a statutory duty to report any injury the physician “believes to See, e.g., In re Subpoena Duces Tecum, 228 probable cause to believe the records contain evidence of a crime, and because

occurred. Thus, the Hospital argues that when the State seeks privileged We first reject the State’s suggestion that we should dismiss the

physician-patient privilege in the context of grand jury subpoenas.

that because a warrant is issued only after an independent magistrate finds

chilling effect on physician-patient communications would already have post-disclosure relief, including preclusion of admissibility, is insufficient: the contends that an opportunity to object prior to disclosure is critical because

response. Relying on Hospital’s operations, and requires unnecessary emergency review and The State first counters that the case is moot. The State further argues

demonstrate a lack of alternative sources for the evidence it seeks. It further warrants for medical records improperly relieves the State of its obligation to

tecum. The urgency of a search warrant, it argues further, disrupts the and therefore their production is more properly sought by subpoenas duces shall be required to disclose such privileged communications.

p. 4 except as otherwise provided by law, no such physician or surgeon

patient wishes to preserve.” basis as those provided by law between attorney and client, and, the patient of such physician or surgeon are placed on the same physician or surgeon licensed under provisions of this chapter and

includes information, such as medical reports or test results, generated by a

statute governing the physician-patient privilege. prevent the physician from revealing statements whose confidentiality the address here the interplay between the law governing search warrants and the privacy in medical records. This case does not raise that issue. Rather, we

The confidential relations and communications between a

codification of the physician-patient privilege, provides in pertinent part: Elwell, 132 N.H. at 604-05. RSA 329:26 (Supp. 2009), the legislature’s latest

“Communications between a physician and a patient are privileged. This

N.H. at 439. “[The physician-patient] privilege belongs to the patient, who may embarrassing, for the purpose of receiving complete treatment.” four cases, however, center upon a patient’s asserted constitutional right to Payne, 150 about their injuries or ailments to medical providers, however personal or protect patient health by encouraging patients to fully disclose all information law). “By creating the physician-patient privilege, the legislature sought to R. Ev. 503.” State v. Elwell, 132 N.H. 599, 603 (1989) (decided under prior Laws 1969, ch. 386, and has been incorporated into the rules of evidence, N.H. The privilege “was created in our State by statutory enactment in 1969, cause upon which the search warrant is issued relates.” RSA 595-A:1 (2001). seize any property which is . . . [e]vidence of the crime to which the probable

will be found in the place to be searched.” demonstrate a substantial likelihood that the evidence or contraband sought need only present the magistrate with sufficient facts and circumstances to issuing a subpoena, and, therefore, no additional protections are required. All that obtaining a search warrant affords greater procedural protection than Farrall v. State, 902 So.2d 820 (Fla. Dist. Ct. App. 2004), for the proposition 577 S.E.2d 764 (Ga. 2003), State v. Nelson, 941 P.2d 441 (Mont. 1997), and The State cites State v. Skinner, 10 So. 3d 1212 (La. 2009), King v. State,

(2004). A magistrate may issue a warrant allowing police “to search for and

(quotation and citations omitted). “To establish probable cause, the affiant issuance of a search warrant. State v. Canelo, 139 N.H. 376, 380 (1995) probable cause by a neutral and detached magistrate,” as a prerequisite to the New Hampshire Constitution] as requiring an objective determination of Law Dictionary 1470 (9th ed. 2009). “We have interpreted part I, article 19 [of officer to conduct a search of a specified place and to seize evidence.” Black’s official criminal proceedings. 5 p. 5 use and disclosure of such information shall be limited to the under the influence of intoxicating liquors or controlled drugs. The A.”). circumstances. proceedings or hearings conducted pursuant to RSA 135-C:27-54 or RSA 464legislature intended to retain the privilege for other medical records in such driving while intoxicated charges leads to the corollary conclusion that the

investigation for driving a motor vehicle while such person was

licensing or certifying board conducting licensing, certifying, or disciplinary

from the privilege certain samples and test results for use in prosecutions of (2009) (quotation omitted). The fact that the legislature specifically excepted duplicative provisions.” In re Guardianship of Williams, 159 N.H. 318, 323 effect. We also presume that the legislature does not enact unnecessary and provisions and whenever possible, every word of a statute should be given driving while intoxicated. “[T]he legislature is not presumed to waste words or enact redundant

treatment in connection with the incident giving rise to the alcohol content taken from a person for purposes of diagnosis and medicine under RSA 329, any other statutorily created health occupational samples and the results of laboratory tests for drugs or blood shall not apply to investigations and hearings conducted by the board of various proceedings unrelated to criminal prosecutions. See id. (“This section RSA 329:26. The statute also allows for use of privileged information in

to or use of medical records in connection with criminal prosecutions for

This section shall . . . not apply to the release of blood or urine

connection with criminal prosecutions for driving while intoxicated: however, specifically provide for the use of certain medical results in policy sought to be advanced by the entire statutory scheme.” (analyzing exceptions to privilege under RSA 329:26). The statute does,

The physician-patient privilege statute includes no exception for access

omitted). statute to discern legislative intent.” Dodds, 159 N.H. at 244 (citations include. Absent an ambiguity, we will not look beyond the language of the what the legislature might have said nor add words that it did not see fit to Cranmore Ski Resort, 152 N.H. 399, 401 (2005). “We will neither consider

statutes in light of the legislature’s intent in enacting them, and in light of the whole.” State v. Dodds, 159 N.H. 239, 244 (2009). “Our goal is to apply legislature’s intent as expressed in the words of the statute considered as a “In matters of statutory interpretation, we are the final arbiters of the has made adequate efforts to investigate alternative sources.

p. 6 to overcome a motion for directed verdict; and (3) whether the State

admissible at trial; (2) whether the alternative evidence is sufficient records, we consider: (1) whether the alternative evidence is prosecution of the defendants without access to their medical 6

burdensome means to pursue a felony prosecution.”

information is available to the State for it to pursue criminal

case.” might be the best evidence of ‘serious bodily injury’ or provide the least Id. at 442-43. identified; or (3) disclosure is essential under the specific circumstances of the confidential relationship between physicians and patients,” obligation to carefully safeguard the statutory protection afforded the

constitute a compelling justification to support invasion of the privilege.” reconcile the privilege with the goals of law enforcement.

its disclosure.” In determining whether a reasonable alternative source of

privilege can never be justified just because a defendant’s medical records disclosure; (2) a sufficiently compelling countervailing consideration is element of felony aggravated driving while intoxicated.” Id. “Invasion of the alternative sources it can use at trial to prove the ‘serious bodily injury’ records upon a showing of probable cause. Because we have a “continuing to honor the legislature’s design to preserve patient health,” The State, however, “must still show that it has no reasonably available

“The investigation of felonies and the search for relevant evidence one by the State, we held that certain procedural protections were necessary to

Id. at 442.

unavailable from another source and that there is a compelling justification for seeking the privileged records must prove both that the targeted information is Id. at 440-41 (citations omitted). “To establish essential need, the party

therefore, the privilege may yield when: “(1) a statute specifically authorizes

the legislature’s silence as effectively vitiating the privilege for other medical explained that “any intrusion into the confidential sphere must be circumspect legislative protections afforded the physician-patient privilege, we cannot read Id. at 447-48. We law governing search warrants, and we affirm. However, in light of the the State sought medical records by subpoena, two issued by a grand jury and In Payne, which involved a successful challenge to three instances where

the State seeks privileged medical records by a search warrant. 448, we will consider what safeguards should be required in the future when

sought by search warrant, the trial court’s order was in accordance with the Given the legislature’s silence as to the treatment due privileged records required.

p. 7 sought by search warrant, at least a minimal level of procedural protection is

privilege-holders, lead us to conclude that when privileged medical records are intrusiveness of searches, combined with the potential for irreparable injury to privileged records contain evidence of a crime. The immediacy and 7

seizure generates an irreparable injury to the possessor of the privilege”). documents and things only after judicial process is afforded.

physician, would not normally be revealed.

important, because a magistrate has found probable cause to believe that the

Kan. 1993) (“an invasion of the attorney-client privilege through a search and an adversary process that can command the production of

See Matter of 636 South 66th Terrace, 835 F. Supp. 1304, 1306 (D. as the defendant’s medical history and statements to his

physician-patient privilege is no less valid, and its rationale is no less Subpoena Duces Tecum, 228 F.3d at 348. But we conclude that the

the warrant issues, whereas the issuance of a subpoena initiates demonstrating probable cause to a neutral judicial officer before sought.” serious bodily injury should be disclosed. Other information, such conducted pursuant to a warrant demand the safeguard of released. We emphasize that only information necessary to prove [T]he immediacy and intrusiveness of a search and seizure certain that irrelevant and non-responsive information is not subpoenas: We recognize the essential differences between search warrants and

Payne protections for discovery of privileged psychotherapy records). Id.; see Desclos v. S. N.H. Med. Ctr., 153 N.H. 607, 615-19 (2006) (requiring

medical records must also be served upon the individual whose records are any subpoena issued to a hospital or medical provider to obtain privileged him with adequate notice of its effort to obtain his medical records. Therefore, review. In the course of that review, the trial court should make privilege, the trial court is required to conduct an in camera State can establish a legal right to override the physician-patient [I]f a party objects to the production of medical records and the

records.” Id. at 448. file a motion to quash or otherwise object to disclosure of the requested oppose disclosure: “Either the defendant or the medical provider or both may

Id. at 447. Moreover, the defendant must have an opportunity to

that, “for a defendant to protect his statutory privilege, the State must furnish In addition to requiring proof that the information is essential, we stated disagree with the State’s analysis.

p. 8 pursuant to the reporting statute, thereby abrogating the privilege. We

information he possesses concerning the injury.

injury. Such an injury, the State argues, must inevitably be disclosed while intoxicated and thereby caused a collision resulting in serious bodily cause to believe that C.T.’s medical records contain evidence that he drove immediately to notify a law enforcement official of all the

issuance of a search warrant necessarily includes a determination of probable believes to have been caused by a criminal act, he fails assisted another for a gunshot wound or for any other injury he a person is guilty of a misdemeanor if, having knowingly treated or

The physician reporting statute provides in pertinent part that:

privilege is abrogated here based upon the physician reporting statute. In

State asserts that the issue is before us now because the district court’s statute’s reporting mandate as that issue is not before us.” Id. at 441-42. The records in the event it believes a medical provider has failed to comply with the allow the State to seek an injunction or other court remedy to access privileged Payne, we stated, “We need not decide whether the reporting statute would

We are not persuaded by the State’s argument that the physician-patient

Attorney-Client Communications, 72 U. Chi. L. Rev. 729 (2005). Colo. L. Rev. 571 (1983); Comment, The Search and Seizure of Privileged Comment, Colorado’s Approach to Searches and Seizures in Law Offices, 54 U. Unreasonableness of Law Office Searches, 49 Fordham L. Rev. 708 (1981); (1980); Note, The Assault on the Citadel of Privilege Proceeds Apace: The the attorney-client privilege, by various common-law procedures. Search: An Emerging Problem and Some Suggested Solutions, 69 Geo. L.J. 1 justice, and suggest various procedures. See, e.g., Bloom, The Law Office protection above the probable cause standard is required in the interests of App. 1985). Commentators also argue that some measure of privilege In Re Search Warrant for 2045 Franklin, Denver, 709 P.2d 597, 599-601 (Colo. (Or. 1997); In re Investigating Grand Jury, 593 A.2d 402, 405-06 (Penn. 1991); 669 A.2d 1331, 1334 (Me. 1996); State v. Charlesworth, 951 P.2d 153, 164-66 1215, 1223-29 (Colo. 1982) (Quinn, J. specially concurring); State v. DeMotte, 66th Terrace, 835 F. Supp. at 1306; Law Off. of Bernard D. Morley, 647 P.2d Impounded Case (Law Firm), 840 F.2d 196, 200-02 (3d Cir. 1988); 636 South re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d at 858; In re

§ 1 (2009). Other jurisdictions protect privileges, including, most commonly, (2009); Cal. Penal Code § 1524(c), (i) (Deering 2008); Mass. Gen. Laws ch. 276 legislatively. See 42 U.S.C.A. § 2000aa-11(a) (2003); 28 C.F.R. § 59.4(b)(1) State has recognized, some jurisdictions have established protections protections where privileged documents are sought by search warrant. As the We note that a number of other jurisdictions impose procedural prosecution against the

p. 9 the physician-patient privilege to obtain medical records for use in a 9 with the reporting statute, such would not, standing alone, warrant piercing Furthermore, even if there were evidence of a medical provider’s noncompliance

information is

the statute’s reporting mandate.

for piercing the privilege);

(quotation omitted));

reported the defendant’s injury to the jail for treatment purposes. essential and reasonably necessary to permit counsel adequately to crosspatient privilege only as to materials found through in camera review “to be Farrow establishes that the privilege has yielded only when disclosure of the privileged, 116 N.H. 731, 733 (1976) (criminal defendant may pierce therapistneed for the information and no alternative source is available.”); State v. support a further conclusion that a medical provider has failed to comply with present a “sufficiently compelling countervailing consideration,” (“The attorney-client privilege may not be absolute when there is a compelling

effective enforcement of drunk driving laws, though compelling, is not grounds information is essential,” where other sources of information are available, the patient privilege is not absolute and will yield when the disclosure of

when disclosure of the information concerned is considered essential.” Desclos, 153 N.H. at 615 (“The psychotherapist-patient privilege must yield provider believed to be the result of criminal activity. Indeed, the Hospital essential in light of the countervailing consideration. See, e.g.,

warrant piercing the privilege. However, a close examination of our precedent medical providers may have breached their reporting obligations.” id. at 440, to records relevant to C.T.’s alleged crimes. However, such a finding does not The State argues that we have found the prosecution of felonies to unilateral authority to subpoena privileged records when it believes that

evidence in this case that any medical provider failed to report an injury the

substantial likelihood of finding evidence in C.T.’s November 19, 2008 medical privileged under RSA 329:26. It does not, however, provide the State with warrant, we assume the trial court properly concluded that there was a Given that the Hospital has not challenged the sufficiency of the search information they possess regarding the injuries. communication.’ RSA 318-B:21 (1995).” (brackets omitted)). administration of any such drug, shall not be deemed a privileged an effort unlawfully to procure a controlled drug, or unlawfully to procure the privilege . . . by providing that ‘information communicated to a practitioner in v. Summers, 142 N.H. 429, 432-33 (1997) (“The legislature revoked the

obligation may require medical providers to divulge information otherwise A breach of this obligation can result in criminal liability. See id. “This

were caused by criminal acts must promptly report to law enforcement all RSA 631:6, I (2007). Thus, medical providers who treat injuries they believe p. 10 10

patient privilege. and medical providers and meet our responsibility to safeguard the physicianlegislative expression, we must address the legitimate concerns of hospitals

by the State to obtain privileged medical records by search warrant. procedural protections we have outlined herein shall apply to all future efforts Accordingly, while we affirm the trial court’s order in this case, we hold that the

policy determination best suited for the legislature. But in the absence of comply within a reasonable time by producing the records under seal for BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred. privileged medical records shall order the hospital or medical provider to

source and that there is a compelling justification for its disclosure.

cases. (2007) (the legislature is free to amend the pertinent statute as it sees fit).

See In the Matter of LaRue & Bedard, 156 N.H. 378, 381

need.” The State has not asserted essential need in this case.

We recognize that, ideally, the balancing of interests in this manner is a supervisory powers). We instruct that, henceforth, any search warrant for 150 N.H. at 442. ensure the fair administration of justice”); Cf. Payne, the State must prove both that the information is unavailable from another demonstrate “essential need” for the information contained in the record, i.e., trial courts and parties as to a uniform and fair process to be applied in future opportunity to object to their disclosure. Upon objection, the State must produced and shall give the patient and hospital or medical provider an manner by which the patient shall be provided notice that such records were camera review by the trial court. The trial court shall then determine the concededly outside the warrant context, has ultimately focused on “essential in hearing). Thus, our established law governing piercing the privilege, been “virtually deprived” of evidence to present to trial court in recommitment on defendant’s dangerousness and mental condition, the State would have 70 (1886) (noting that Supreme Court has broad and comprehensive

337 (2001) (electing “to exercise supervisory jurisdiction over our trial courts to See Payne, 150 N.H. at 447; see also State v. Barnett, 147 N.H. 334,

Accordingly, we exercise our supervisory powers to provide guidance to

without disclosure of privileged records as best information available bearing available), with State v. Kupchun, 117 N.H. 412, 415-16 (1977) (finding that establish necessity where other sources of information were potentially treating physician offers best evidence as to dangerousness insufficient to Kathleen M., 126 N.H. at 385-87 (holding mere conclusory statement that examine for the purpose of showing unreliability or bias”). Compare In re