Closing the Practice: Records, Subpoenas, and Divorced Parents
An optometrist is closing her 32-year practice at the end of the month. She has 1,400 active records stored on paper in a rented storage unit and plans to destroy them two years after closing. Three events arrive the same week. A former patient with a $60 balance sends a signed request for copies of his complete record to give to his new optometrist. A plaintiff's attorney serves a subpoena duces tecum for the records of a different patient involved in a car-crash injury claim, with no patient authorization and no court order. The divorced parents of a 16-year-old contact lens patient each demand the records; the father says he will sue if anything is released to the mother. The optometrist asks whether she can charge for copies and whether the subpoena must be obeyed immediately.
1. Can she withhold the first patient's records for the unpaid $60 balance, and what must she provide?
Read the worked answer
The patient owns the information; the optometrist is its custodian. A signed request must be honored promptly by providing a complete copy - examination findings, refractions, contact lens data, correspondence, and test results. A reasonable copying fee is generally permitted, but the $60 balance cannot be used to withhold the record when the patient needs it for continuity of care. Withholding records for an unpaid bill can be treated as unprofessional conduct and, if the patient is left without care, as abandonment.
The practical course is to release the records, bill the balance separately, and document the release. If the state's record statute sets a fee schedule, follow it, and do not charge for time spent deciding whether to release. Send by a secure method and keep a copy of what was sent and the authorization. A records-release log should record the date, recipient, and what was provided.
2. How should she respond to the subpoena duces tecum?
Read the worked answer
A subpoena is a court order and cannot simply be ignored; ignoring it risks contempt. But it is not, by itself, authorization to disclose anything the plaintiff's lawyer asks for. She should verify that the subpoena is valid, notify the patient (or the patient's lawyer) so an objection can be made, and require either a patient authorization or a court order or qualified protective order before producing records. In litigation, HIPAA permits disclosure in response to a subpoena only with satisfactory assurances that the patient has been notified and has an opportunity to object, or with a protective order. She may also assert the patient's privilege.
The safest route is to contact her own counsel or malpractice carrier before producing anything, and to produce only the records specifically described. She should not produce the entire file, and she should not discuss the patient's care with the requesting attorney.
3. What are her obligations regarding the minor's records, record retention, and closing the practice?
Read the worked answer
Minors: both parents generally have rights to a minor's records unless a court order limits one parent, and the father's threat is not a court order. She should ask for the custody order; if there is none, provide copies to the requesting parent and document the request. Where the parents are in conflict, a short letter to both explaining the practice and requesting a court order is prudent.
Closing: the two-year destruction plan is probably too short. Retention must meet the Board's required period, which may be longer for minors and for records involved in claims. She should arrange a custodian or transfer records to a successor, notify patients by public notice and, where feasible, individual notice, store records securely rather than in a rented storage unit or garage, and destroy them only after the retention period by confidential means. She should also check whether the Board requires notice of closure and a statement of where records will be kept.