Many times I receive calls from clients who have been in car accidents and have been taken via ambulance to a hospital for medical treatment. After they are released they receive a notice from the State indicating the State is seeking their medical records through a subpoena. This process is controlled by statute. 625 ILCS 5/11-501.4 allows for the State to obtain medical records of those treated by medical facilities. The statute requires the treatment provided be administered in the regular course of emergency medical treatment. The treatment records must be from the facility's emergency room and are admitted by application of this statute as a business records exception to the hearsay rule. The criteria that must be met are: the chemical testing must be be ordered in the regular course of medical treatment; the tests were performed by a laboratory normally used by the hospital; and the results of the testing are admissible regardless of the time that the records were prepared.
HIIPA does not preempt this statute. That means where normally a person's medical records are confidential, this statute precludes that exception.
Although the process is permitted by statute, the manner in which the State attempts to gather such documents must be analyzed. In this area, all trauma facilities are located across state lines in St. Louis. An Illinois subpoena is insufficient as process to compel an out of state entity to produce records. The proper process to be used in such circumstances requires the State to open a miscellaneous remedies case in the state where the entity is located and have issued from that court a valid subpoena. Many times the State will not attempt to take the additional required step. In such a situation, it is prudent to object to opening of the records with the court for that very reason. A motion to quash service should be sufficient.