From Brian Fannin, Fannin Law PLLC
A Fredericksburg Today Partner
The influx of holiday visitors ebbs for most of us in January, leaving some of us to ponder pleasantly: where did the idea of privacy come from, and why do I like it so much? Families and households make their own rules, but as Americans we enjoy certain privacy rights that can’t be taken away.
The Bill of Rights starts us out with a few beauties-the right to be private about self-incrimination, a requirement of probable cause and a warrant for a valid search through our stuff, and of course the Ninth Amendment’s clarification that just because a right isn’t explicitly mentioned (the word “privacy” never appears in the Bill of Rights) doesn’t mean we don’t have it.
It was left to Justice William O. Douglas in the Griswold v. Connecticut decision to divine from “emanations” and “penumbras” of the Bill of Rights that we had a lot more rights than were being recognized-including marital rights that the state would do well to leave alone. (And no, the case did not involve Chevy Chase’s family from the classic National Lampoon’s Vacation movies-though that would have been quite a sequel.)
One concern nowadays, particularly when we pay our health insurance premiums, is whether we have a right to privacy with our medical records. Here is intimate information being compiled about us and put into reports, which we would love to make available to those doctors who need to know; and to nobody else. This becomes an issue in many a legal battle when one party serves another with a subpoena duces tecum (a subpoena to produce a document or some other tangible evidence) calling for medical records to be revealed. A physician and patient enjoy a privilege, but there is a very wide exception when the subject of the lawsuit touches on the physical or mental health of the person whose records are being demanded. Does our right to privacy automatically stop such an effort?
No, but we do have the right to ask the court to stop it. This is called Quashing the Subpoena-a wonderful word, quash, usually reserved for rebellions or termite infestations, and delightfully close to the kid-friendly “squash”. We do value our privacy.
By filing a motion to quash a subpoena, a patient, doctor or other party can ask the court to consider evidence relevant to the effects of releasing such information, such as the harm a patient would suffer. There is even a helpful statute that directs the court to consider certain important factors. And if the ruling is in favor of quashing the subpoena, your private records remain private. Like a person enjoying the silence, after the parties are over and the visitors are gone, in a quiet January house.
If you have any concerns about privacy law or any other area where a lawyer might help, contact FANNIN LAW PLLC at (540) 371-5300 or via email at [email protected] to discuss your needs.
Brian Fannin
THE PRECEDING DOES NOT CONSTITUTE LEGAL ADVICE AND IS NOT THE PRACTICE OF LAW.
