In November of 2008, a motor vehicle operated by C.T. was involved in a crash. At the scene, C.T. was injured and appeared to be intoxicated. He was treated at the scene and later taken to a hospital for further treatment. He was arrested for aggravated driving while intoxicated and, upon release, taken to the county jail. The hospital soon advised the jail that C.T. had suffered a broken ankle. Later that day, the investigating officer sought and obtained approval from a district court judge to serve a search warrant upon the hospital for its medical records. Some information was produced and, eventually, a motion was filed by the hospital objecting to the search warrant. Following an order of the court that issued the warrant, the remaining information was provided, and an appeal was filed with the Supreme Court.
Criminal search warrants are used by the police to discover evidence of a crime. Because they are intrusive to private rights, they must be authorized in advance by a judge. Medical records involve the physician-patient privilege, and as such involve the most private and personal information imaginable. If a hospital is presented with a search warrant for these reasons, the hospital is faced with the dilemma of whether to comply with a lawfully issued warrant, or violate ethical and statutory obligations to maintain patient confidentiality.
The Court framed the issue. “This case presents an issue of first impression in New Hampshire: how to resolve the tension between the well-established law governing search warrants and the statutory protection afforded the physician-patient privilege.” The Court was clearly troubled by this dilemma and, as a result, announced a new procedure to be followed by trial courts in these situations. Medical providers must comply with the warrant by filing the records under seal with the issuing court. Notice is then provided to the patient that the records have been sought, and both the patient and the medical provider have an opportunity to object to disclosure of the information. Upon such an objection, a court hearing must be held, and the burden is placed upon the police both to justify the need for the information and to show that it is not available from another source.