In re subpoena v. Dwight L Bailey

In connection with an investigation into federal healthcare offenses, the Respondents, Dr Bailey and a professional healthcare association, were served with four subpoenas from the United States Attorney for the Western District of Virginia as authorized under 18 U.S.C. § 3486. The subpoenas required, among other things, the production of patient medical records. Section 3486(e)(1) prohibited use of the disclosed information except as “directly related to receipt of health care or payment for health care or action involving a fraudulent claim related to health, or as authorized by a court for good cause shown.”

The Respondents filed a motion to quash the subpoenas on various grounds, including that they unconstitutionally violated patients’ privacy rights. The District Court denied the Respondents motion to quash the subpoenas and this appeal followed.

The court held that the production of the subpoenaed medical records was not a violation of the patients’ constitutional right to privacy. The court held that the government had a “compelling interest in identifying illegal activity and in deterring future misconduct” and that this interest outweighed the patients’ expectation of privacy in the subpoenaed medical records. This was particularly true in light of § 3486(e)(1)’s restrictions on the use of subpoenaed information. Citing Whalen v Roe, 429 U.S. 589 (1977), the court explained that any disclosure of information in the patients’ files was not “meaningfully distinguishable from a host of other unpleasant invasions of privacy . . . associated with many facets of health care.”

“We agree with the government that any disclosure of information in the files of Bailey's patients is not ‘meaningfully distinguishable from a host of other unpleasant invasions of privacy that are associated with many facets of health care.’” 228 F.3d, p. 351.