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Texas law has long required that plaintiffs in tort actions or personal injury cases support their claims for medical expense from a defendant with evidence that the charges were reasonable and necessary. But things shifted after In re N. Cypress Medical Center, 559 S.W.3d 128 (Tex. 2018) and the line of cases that followed, as Texas courts clarified that, under certain limited circumstances, the amounts a third-party medical provider was willing to accept as payment from government/commercial payors could sometimes be relevant to the underlying damages dispute between a plaintiff and alleged tortfeasor.
Since then, third-party subpoenas directed to hospitals, clinics, and other health care providers have become a regular—and increasingly burdensome—feature of Texas litigation. High-volume personal injury lawyers and defense counsel routinely issue boilerplate subpoenas and deposition requests seeking medical and billing information from medical providers. However, these subpoenas often fail to meet patient privacy requirements and include overbroad, unnecessarily complicated, and voluminous requests that providers are unable to answer. The result is mismatched expectations, delays, and escalating third-party motion practice that drain resources for litigants and providers alike.
Texas lawyers can streamline this process when they understand the requirements and needs of both sides. To get there, these subpoenas must overcome two common problems: missing HIPAA requirements and overbroad, burdensome document requests.
First, litigators must ensure their requests are HIPAA-compliant. Subpoenas for patient billing records often implicate protected health information (PHI), and providers are covered entities that must comply with state and federal privacy laws. Be prepared to identify the applicable exception to state and federal privacy laws that allow for production of any PHI, or ensure your subpoenas are accompanied by a valid authorization, statement of assurance, or court order authorizing production of any documents or information containing PHI.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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