As shown by a recent Illinois appellate court decision, Kim v. St. Elizabeth’s Hosp., Ill. App. Ct., No. 5-08-0571, (Oct. 23, 2009), the patchwork of federal and state protections for certain types of information has made the process of responding to subpoenas more difficult. This is particularly the case with medical records.

Based on an Illinois law providing special protections for mental health records known as the Illinois Mental Health and Developmental Disabilities Confidentiality Act, the plaintiff in this case sued the hospital and her former husband’s law firm alleging the impermissible release of her mental health records in connection with a prior divorce action.

Absent an authorization from the individual, the Illinois Act prohibits any third party, including medical providers, from responding to a subpoena for mental health records unless the subpoena is accompanied by a written court order authorizing the disclosure. This requirement may be surprising to some, who assume that a subpoena is, itself, a request from the court. The law also prohibits the use of mental health records in litigation unless a judge makes certain findings after a review of the records.

In this case, the husband’s law firm served a subpoena on the health care provider seeking “any and all records regarding the care and treatment of” the plaintiff. While the appellate court wrestled with some procedural issues involving the lower court’s rulings, it held that the matter had not been fully considered and there could very well have been a violation of the Illinois law restricting the disclosure of certain mental health records.

This decision highlights the complicated tensions that arise in every state and federal court when medical records or other private information is requested during discovery. It also should be a reminder for hospitals and all other entities receiving requests for information to exercise the appropriate due diligence before responding.