                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 96-CA-01351-SCT
STATE OF MISSISSIPPI
v.
BAPTIST MEMORIAL HOSPITAL-GOLDEN
TRIANGLE

DATE OF JUDGMENT:                               11/13/96
TRIAL JUDGE:                                    HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                      LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         JAMES T. KITCHENS, JR.
ATTORNEY FOR APPELLEE:                          LAUREN J. HUTCHINS
NATURE OF THE CASE:                             CIVIL - OTHER
DISPOSITION:                                    REVERSED AND REMANDED - 4/9/98
MOTION FOR REHEARING FILED:                     5/15/98
MANDATE ISSUED:                                 4/12/99




     EN BANC.


     ROBERTS, JUSTICE, FOR THE COURT:


                                   STATEMENT OF THE CASE

¶1. The State of Mississippi appeals unto this Court an order issued by the Circuit Court of Lowndes
County quashing a grand jury subpoena duces tecum and a search warrant issued as part of a criminal
investigation of a homicide. The documents requested information regarding medical records of
patients of the Baptist Memorial Hospital-Golden Triangle (BMH-GT) who had been treated for
lacerations during a specified time period. The hospital refused to comply with the subpoena duces
tecum and the search warrant based on Miss. Code Ann. § 13-1-21, physician-patient privilege. After
a hearing on the issue, the lower court quashed both the subpoena duces tecum and the search
warrant based on the medical privilege found at Miss. Code Ann. § 13-1-21 and Miss. R. Evid. 503.
The State of Mississippi appeals unto this Court raising the following issue:

     I. WHETHER MISS. CODE ANN. § 13-1-21 AND MISS. R. EVID. 503 MUST BE
     READ IN PARI MATERIA WITH OTHER STATUTORY PROVISIONS WHICH
     CREATE EXCEPTIONS TO THE PHYSICIAN-PATIENT PRIVILEGE.

¶2. The public interest in effective and efficient investigations into criminal activity outweighs the
privacy rights of the individuals who would be affected by the subpoena duces tecum and the search
warrant. This case is reversed and remanded for further proceedings not inconsistent with this Court's
opinion. These instructions are given so that criminal investigation will not be impeded and the
privacy rights of the state's citizenry will not be unnecessarily infringed.

                                  STATEMENT OF THE FACTS

¶3. On July 8, 1996, the Columbus Police Department was called to the home of Mack Fowler. Upon
arriving at Fowler's home, the police determined that Fowler had been stabbed to death. Police found
a broken bottle with jagged edges at the crime scene that was covered with what appeared to the
investigating officers to be blood. The Police were not sure if the perpetrator had used the bottle to
strike the victim or if the victim had attempted to defend himself with the bottle against the attack of
the perpetrator. Further, the Police did not know whether the blood came from the perpetrator or the
victim. At the time of the lower court proceeding the tests determining the source of the blood on the
bottle had not been returned from the Mississippi Crime Lab.

¶4. Notwithstanding the uncertainty of the source of the blood, the Police determined that the
perpetrator had probably been injured during the commission of the crime and sought treatment at a
hospital for those injuries. The Police secured a grand jury subpoena duces tecum on July 16, 1996,
seeking

     ANY AND ALL MEDICAL RECORDS PERTAINING TO ANY PATIENTS ADMITTED
     OR TREATED BY BAPTIST MEMORIAL IN THE EMERGENCY ROOM OR PRIMARY
     CARE UNIT ON THE 8TH DAY OF JULY, 1996 THROUGH AND INCLUDING THE 9TH
     DAY OF JULY, 1996, INVOLVING ANY AND ALL CUTS AND LACERATIONS
     INFLICTED ON ANY PART OF THE PATIENTS' BODY.

This grand jury subpoena duces tecum was served upon the custodian of the records at the BMH-
GT. However, the custodian refused to provide this information citing patient confidentiality.

¶5. Subsequently, on July 31, 1996, the Police sought and received a search warrant from a local
magistrate. The search warrant was served on the BMH-GT and sought "[a] list of any and all
patient's names and addresses who were treated for any cuts or lacerations to any part of their body
by Baptist Memorial Hospital Golden Triangle, Primary Care or in the Emergency Room on July 8,
1996, though July 16, 1996." BMH-GT refused to comply with the search warrant based on patient
privilege.

¶6. BMH-GT filed a petition to quash the grand jury subpoena duces tecum and the search warrant
with the Circuit Court of Lowndes County. In the petition BMH-GT claimed the requested medical
information was privileged from disclosure by Miss. Code Ann. § 13-1-21(1) and Miss. R. Evid.
503(b).

¶7. Following a hearing on BMH-GT's petition, the Circuit Court of Lowndes County entered an
order quashing the grand jury subpoena duces tecum and the search warrant served upon BMH-GT
on the basis that the medical records and medical information were, in fact, protected from disclosure
by the medical privileges found at Miss. Code Ann. § 13-1-21 and Miss. R. Evid. 503. It is from this
lower court order that the State of Mississippi has appealed unto this Court.
                                   DISCUSSION OF THE ISSUE


     I. WHETHER MISS. CODE ANN. § 13-1-21 AND MISS. R. EVID. 503 MUST BE
     READ IN PARI MATERIA WITH OTHER STATUTORY PROVISIONS WHICH
     CREATE EXCEPTIONS TO THE PHYSICIAN-PATIENT PRIVILEGE.

¶8. The lower court quashed the subpoena duces tecum and the search warrant after holding that the
information sought in those documents was privileged from disclosure pursuant to Miss. Code Ann. §
13-1-21(1) and Miss. R. Evid. 503(b). Therefore, the circuit judge ruled as a matter of law that
BMH-GT could not disclose the requested information to the police due to the confidentiality
granted via the physician-patient privilege.

¶9. This Court employs a de novo standard of review when passing on questions of law. Starcher v.
Byrne, 687 So. 2d 737, 739 (Miss. 1997). The Court will only reverse if there has been an erroneous
interpretation or application of the law. Mississippi Transp. Comm'n v. Fires, 693 So. 2d 917, 920
(Miss. 1997). This Court has the final say regarding the interpretations of law. Therefore, this Court
must look at the record de novo to determine if the lower court erred by quashing the subpoena
duces tecum and the search warrant based on the physician-patient privilege found at Miss. Code
Ann. § 13-1-21 and Miss. R. Evid. 503 without considering other statutory exceptions to the
privilege.

¶10. The State of Mississippi recognizes the physician-patient privilege in two forms. The legislature
enacted Miss. Code Ann. § 13-1-21(1), which provides

     [a]ll communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist,
     podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking
     professional advice are hereby declared to be privileged, and such party shall not be required to
     disclose the same in any legal proceeding except at the instance of the patient or, in case of the
     death of the patient, at the instance of his personal representative or legal heirs in case there be
     no personal representative, or except, if the validity of the will of the decedent is in question, at
     the instance of the personal representative or any of the legal heirs or any contestant or
     proponent of the will.

Miss. Code Ann. § 13-1-21(1) (Supp. 1997).

¶11. Secondly, this Court created a version of the physician-patient privilege by enacting Miss. R.
Evid. 503. Subsection (b) provides

     [a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing
     (A) knowledge derived by the physician or psychotherapist by virtue of his professional
     relationship with the patient, or (B) confidential communications made for the purpose of
     diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug
     addiction, among himself, his physician or psychotherapist, and persons who are participating in
     the diagnosis or treatment under the direction of the physician or psychotherapist, including
     members of the patient's family.

Miss. R. Evid. 503(b).
¶12. The patient may claim the privilege, but the person who was the patient's physician is presumed
to have authority to claim the privilege on behalf of the patient. Miss. R. Evid. 503(c). Although the
case before this Court concerns an investigation into a homicide, the privilege may be applied to any
legal proceeding. Miss. Code Ann. § 13-1-21(Supp. 1997). Mississippi recognizes and applies the
physician-patient privilege in criminal proceedings. Ashley v. State, 423 So. 2d 1311, 1314 (Miss.
1982) (citing Keeton v. State, 175 Miss. 631, 167 So. 68 (1936)). The privilege clearly applies in this
matter presently before the Court.

¶13. The subpoena duces tecum requested the medical records of patients who were admitted or
treated at BMH-GT for cuts and lacerations inflicted on any part of the patients' body from July 8-9,
1996. The search warrant requested a list of the patients' names and addresses who were treated for
any cuts or lacerations on any part of their body on July 8-16, 1996. BMH-GT argues that the
subpoena duces tecum sought the production of the entire medical records of patients who were
treated for lacerations or cuts. We disagree and find that the wording of the subpoena is specifically
limited to the patients' medical records as they relate to any lacerations and cuts.

¶14. BMH-GT contends that the requested information was confidential and subject to protection.
While this information was subject to the physician-patient privilege, there are several exceptions to
the privilege. They are enumerated in the Mississippi Rules of Evidence and in the Mississippi Code.
Miss. R. Evid. 503(d) provides the exceptions to the evidentiary physician-patient privilege.(1) The
Mississippi Code provides at least two instances where disclosure of information overrides the
privilege based on public policy concerns. The first is at Miss. Code Ann. § 43-21-353 (1993). There
the legislature mandated that physicians, along with other listed professionals, should report any
reasonable suspicion of child abuse to the Department of Human Services. Such reports should
contain the names and addresses of the child and his parents or primary guardian, along with the
nature of the child's injuries. Miss. Code Ann. § 43-21-353(1) (1993). Persons who make such a
report are presumed to be acting in good faith and are provided with immunity from any liability, civil
or criminal, that might be imposed. Miss. Code Ann. § 43-21-355 (1993).

¶15. There are other statutory exceptions to the physician-patient privilege. There is a statutory duty
on health care professionals to report and disclose cases of communicable and other dangerous
diseases. Miss. Code Ann. § 41-23-1 (1993). Health care officials are required to report to the
Central Cancer Registry. Miss. Code Ann. §§ 41-91-5, -7, -11 (1993). Although the data is
considered confidential, disclosure is to be made to those persons where it is necessary to carry out
the intent of the chapter. There is also a provision for civil and criminal immunity to those who make
the reports required in this chapter. Miss. Code Ann. § 41-91-13 (1993). Health care personnel are
under a duty to report inflammation of the eyes of a new born. Miss. Code Ann. § 41-35-3 (1993).
There is a duty upon those who have reasonable cause to believe a vulnerable adult has been abused,
neglected, or exploited to report such information to the Department of Human Services. Miss. Code
Ann. § 43-47-7 (1993).

¶16. The statutory exception to the physician-patient privilege found at Miss. Code Ann. § 45-9-31 is
applicable to the case at bar. This particular code section mandates that a physician or any other
health care official, including a veterinarian, disclose to the municipal police department or sheriff's
office the treatment of any human being who the health care professional reasonably believes or
ought to know suffered a wound or injury as the result of a gunshot or knifing. Miss. Code Ann. §
45-9-31 (1993). The legislature provided immunity from civil liability to any such person who reports
the statutorily required information. Id.

¶17. The State contends that the public policy behind these statutory exceptions to the physician-
patient privilege is that there are certain instances where the need to protect society as a whole and
certain vulnerable members of society outweigh an individual's need for confidentiality in his medical
treatment and records. Further, the State claims that Miss. Code Ann. § 45-9-31 is an enactment
driven by public policy. It allows law enforcement officials to be informed of certain injuries which
often result from criminal activity or indicate a crime against a person. We agree with these
arguments by the State.

¶18. The State concedes that the information requested in the subpoena duces tecum might be
somewhat overly broad in its reach. However, the State argues that the names and addresses of the
patients treated for cuts and lacerations requested in the search warrant was required to be disclosed
to the police under Miss. Code Ann. § 45-9-31 (1993). The language in the statute states that any
health care professional who has reason to believe or ought to know that a person sustained an injury
caused by a knifing shall make a report immediately to the police. Id. The reasonable inference of the
term knifing is any cut that appears to have resulted from an object used to make a cut or cause
injury to a person. Knifing just happened to be the term used by the legislature to describe the type
cut or injury. The information requested by the search warrant was the same as that required to be
disclosed by BMH-GT under Miss. Code Ann. § 45-9-31. Therefore, BMH-GT wrongly objected to
the search warrant.

¶19. This Court has recently disallowed physicians to speak ex parte with attorneys in a civil trial
without the patient first waiving his privilege under Miss. R. Evid. 503. Scott v. Flynt, 704 So. 2d
998, 1004-05 (Miss. 1996). This Court stated that "a patient is deprived of this right when a
physician is allowed to speak ex parte because the physician then decides how, when and what
information is to be waived when he is not the holder of said privilege." Id. at 1004. The Court
reiterated that only "the patient [could] waive the privilege and. . .to allow the treating physician to
do so would deprive the patient of that very right." Id. at 1005.

¶20. The case presently before this Court is distinguishable from Scott v. Flynt. First, the Court
reasoned in Scott, that allowing the physician to make a determination as to what information would
be disclosed could expose him to potential liability from an improper disclosure. Id. Here the
question of liability is answered by the statute requiring disclosure of the hospital. Persons who
disclose or report persons who are treated for a wound or injury resulting from a possible knifing are
immune from civil liability. Miss. Code Ann. § 45-9-31 (1993). The potential for civil liability on the
part of BMH-GT for disclosure of the persons treated for lacerations or cuts pursuant to a request by
a search warrant is a non-factor. There can be no liability where immunity has been statutorily
provided by the legislature.

¶21. Second, the case before the Court involves a homicide investigation. Where there is an
investigation into a serious and/or dangerous felony, public policy must override the rights of an
individual. The privilege is to encourage the full disclosure by patients of their symptoms without fear
of public disclosure. State v. Antill, 197 N.E.2d 548, 551 (Ohio 1964). However, the needs of the
patient to have his medical information remain confidential must be balanced against "the interest of
the public in detecting crimes in order to protect society." Id. Where the evidence is necessary to the
proper administration of justice, it is taken out of the physician-patient privilege. See State v.
Howard, 158 S.E.2d 350, 351 (N.C. 1968).

¶22. The Supreme Court of Arkansas rejected the construction of the physician- patient privilege

     which would serve as a cloak for [a] crime. . .. The State has a vital interest in the protection of
     its citizens from acts of violence. It would be unreasonable to say that a physician must report
     his treatment of a gunshot wound to a peace officer, but that the State cannot call him to testify
     as to the nature, location, and extent of such wounds in a court of law.

Freeman v. State, 527 S.W.2d 909, 913 (Ark. 1975) (quoting Wimberly v. State, 228 S.W.2d 991
(Ark. 1950)).

¶23. "The privilege must be interpreted 'in sensible accommodation to the aim of a just result.'" In
the Interest of M.P.C., 397 A.2d 1092, 1095 (N.J. Super. Ct. App. Div. 1979) (quoting State v.
Briley, 251 A.2d 442, 446 (N.J. 1969)). "Such a privilege is accepted only because. . .it serves a
more important public interest than the need for full disclosure." Id. The purpose of the privilege is to
allow a patient to seek treatment without fear of embarrassing disclosure so that he might reveal all
of his symptoms to his physician. Id. "[T]he patient-physician privilege must give way where it
conflicts with the sensible administration of the law and policy. . .." Id.

¶24. We will not allow the physician-patient privilege to serve as a cloak for a crime where a hospital
is required to report this information to law enforcement officials under Miss. Code Ann. § 45-9-31,
but neither will we allow the abuse of physician-patient confidentiality, and we find the guidelines
included herein shall enhance public policy without commensurately damaging individual rights. This
Court in an earlier decision held that hospital "records are admissible in evidence, since the law
required that such records be kept. . .." Motley v. State, 174 Miss. 568, 576, 165 So. 296, 298
(1936). In the case presently before the Court, the medical records of persons treated by the BMH-
GT were kept by the hospital. BMH-GT was required to report to law enforcement officials persons
who were treated for injuries sustained as a result of a knifing. Miss. Code Ann. § 45-9-31 (1993).
Based on our holding in Motley, the Court holds that the lower court erred by quashing the subpoena
duces tecum and the search warrant requiring disclosure of the medical records as they pertained to
the lacerations and cuts sustained by the patients.

¶25. BMH-GT directs this Court's attention to In the Matter of a Grand Jury Investigation, 456
N.Y.S.2d 586 (N.Y. App. Div. 1982). There the court refused to find exception to its physician-
patient privilege by requiring disclosure of the names and addresses of patients treated for stab
wounds. Id. The New York legislature "enacted exceptions to the privilege by requiring the reporting
of incidents of child abuse and bullet wounds and other wounds likely to result in death.
Significantly, it has not required reporting of stab wounds not likely to result in death." Id.
(emphasis added)(citations ommitted).

¶26. The New York statute is easily distinguishable from the Mississippi statute. The New York
statute limited the type of wounds or injuries that must be reported to those types that would likely
result in death. Mississippi provides no such similar limitation. The language in Miss. Code Ann. §
45-9-31 has no limiting language as to the types of knifing wounds that must be reported. The statute
simply states that any health care professional, including a veterinarian, shall report an injury
sustained as a result of a knifing. Miss. Code Ann. § 45-9-31 (1993). All knifings are to be reported.
There is no requirement in the Mississippi statute that the knifing be of a type that will likely result in
death. Therefore, the New York statute has no bearing on this Court's interpretation of Miss. Code
Ann. § 45-9-31.

¶27. The lower court erred by quashing the subpoena duces tecum and the search warrant, though
the circuit judge acted in strict and technical accordance with then existing law, for which he is
commended. This case is reversed and remanded with instructions given by this Court as to what
extent and by what manner the information requested should be disclosed.

¶28. The subpoena duces tecum requested all medical records of those patients treated on July 8-9,
1997, involving lacerations and cuts. The search warrant sought the names and addresses of persons
treated for lacerations and cuts from July 8-16, 1997. Both documents should be read and interpreted
according to Miss. Code Ann. § 45-9-31 and Miss. Code Ann. § 13-1-21. This would mean that
disclosure of the requested information may be made with the following caveats.

¶29. A blanket disclosure of all medical records of the persons treated during the time enumerated
listed in the subpoena duces tecum and the search warrant is not permissible reading Miss. Code Ann.
§ 45-9-31 and Miss. Code Ann. § 13-1-21 together. The only medical records that should be
disclosed are the ones that pertain to any lacerations or cuts treated during the time frame listed in the
documents. The search warrant only sought the names and addresses of those persons treated during
the stated time frame.

¶30. Pursuant to Miss. Code Ann. § 45-9-31, hospitals should disclose to law enforcement officials
the medical records of persons who have been treated for injuries sustained of a type described in the
statute. These records are to have the patients' personal information(2)redacted, and only contain
patient medical information as it pertains to that particular injury. This does not mean law
enforcement investigators will be able go on a fishing expedition. The patients' records subject to
preview will contain only information pertaining to treatment given to the patients during the time
frame enumerated in the court documents. However, the disclosure is to encompass all of the
information in the hospital's possession or knowledge regarding the patients' treatments for their
injuries.

¶31. After the investigating officers have reviewed the records and determined which patient or
patients suffered an injury that would make them a probable suspect, the officers must then obtain a
subpoena duces tecum, search warrant, or court order mandating that the patients' identifying
information be released to the law enforcement officials at that time so that the patients can be
identified in order for the criminal investigation to go forward.

                                            CONCLUSION

¶32. The lower court erred by quashing the subpoena duces tecum and the search warrant. The
information requested by the police was consistent with the information mandated by the legislature
in Miss. Code Ann. § 45-9-31 to be reported by the hospital to law enforcement officials. Because
this was an investigation into a homicide, public policy encouraging and expediting the detection,
investigation, and solving of crimes outweighs the privacy rights of individuals in order to protect the
citizenry of Mississippi.

¶33. In the future, the disclosure of medical records should be done according to this Court's
guidelines contained in this opinion. The investigation into a homicide or other serious felony should
not be impeded by an entity or individual attempting to cloak vital information in the physician-
patient privilege.

¶34. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.

PITTMAN, P.J., SMITH, MILLS AND WALLER, JJ., CONCUR. BANKS, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, J. McRAE, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J., AND BANKS, J.
PRATHER, C.J., NOT PARTICIPATING.


     BANKS, JUSTICE, DISSENTING:


¶35. The majority holds that the subpoena duces tecum and the search warrant issued in this case
request information to which the State is not entitled. It is therefore puzzling to me why the decision
of the lower court is not affirmed. The State would always be free to request an appropriately limited
subpoena or warrant. For these reasons, I respectfully dissent.

¶36. I agree that where the State has reason to believe that a medical care provider has not fulfilled
its statutory duty to report certain injuries, the public policy evinced by Miss. Code Ann. § 45-9-31
(1993) permits the State to seek limited disclosure of redacted medical records. The State may then
use these records to determine whether injuries went unreported which were nevertheless likely to
have been caused by gunshots, knives or weapons similar to knives. The majority's reversal of the
lower court's quashal of the subpoena and the search warrant is curious, however, in light of the fact
that both of these documents seek the identifying information that the majority determines may not be
disclosed. Under the majority's own construction of § 45-9-31, both documents are overbroad; yet it
holds that the lower court erred by quashing them. In other words, the majority effectively holds that
the lower court erred by following the law.(3)

¶37. The specific issue before this Court is whether the subpoena and the search warrant are
overbroad in that they seek privileged information. The subpoena requests unredacted medical
records; the search warrant requests names and addresses of patients. Both documents thus seek
information which the majority expressly holds should be withheld until it is determined that a wound
was likely caused by a knife or similar weapon. Accordingly, the lower court's quashal of the
subpoena and the search warrant should be affirmed.

McRAE, J., JOINS THIS OPINION.

     McRAE, JUSTICE, DISSENTING:

¶38. The physician/patient privilege recognizes both an individual's interest in avoiding disclosure of
personal matters and the providing physician's interest in maintaining the trust of his patient. The
subpoena and search warrant issued in this case were both so broad as to unfairly encroach upon the
statutory privilege. Is this Court now going to allow a daily subpoena for all medical records on
possible suspected crimes? Because the majority incorrectly interprets requirements of hospitals
under Miss. Code Ann. § 45-9-31, I dissent.

¶39. This is a clear case of the State going on a fishing expedition to gather information. This writer
does not disagree with the majority's assertion that public policy dictates the release of certain
medical information when criminal activity is implicated. Nevertheless, when such releases are made,
the State must be careful not to totally ignore statutory notions of privilege and privacy. This case is
a perfect example of what can happen when the State does ignore these notions.

¶40. The State did not even adhere to Miss. Code Ann. § 45-9-31, because it sought information
about people who had suffered cuts or lacerations, which includes more than just "knifings." It need
not be argued in detail here, but suffice it to say that cuts and lacerations can result from impact in
vehicular accidents, recreational activities, or household mishaps. This is exactly the reason that the
Legislature chose to use the word "knifings" in Miss. Code Ann. § 45-9-31; crimes involving the use
of deadly weapons do warrant special treatment, and it is reasonable to require health care providers
to report, upon reasonable belief and inspection, to the authorities those who are treated as a possible
result of such activity. The majority's conclusion that "knifing" is substantially the same as "cuts or
lacerations" is flawed. Giving the word "knifing" such a broad interpretation and allowing the State to
use a subpoena and search warrant like the ones in this case would result in the release of extraneous
confidential information regarding all of the patients treated in a variety of situations that may have
resulted in cuts or lacerations. This Court should regard the use of the word "knifing" in the statute
to be related to wounds inflicted by the misuse of a knife or other similar object. The Legislature
provided no blanket exception to the physician/patient privilege, and this Court should not effectively
apply one.

¶41. Further, the statute requires an exercise of reasonable judgment by the physician, nurse or
hospital employee when reporting a patient to the police department or sheriff. Miss. Code Ann.
§ 45-9-31 does not require that medical records of every patient be turned over to the State; it only
requires the reporting of specific individuals to the authorities. The statute also implies that if a
physician, nurse, or hospital employee provides medical information about patients to the police
under the statute, the determination reached is presumed to be reasonable. Without a showing by the
State that the hospital in this case acted unreasonably in choosing not to report information to the
police, it must be assumed that the hospital acted properly. The majority basically shows no faith that
health care providers can act and have acted in accord with the requirements of Miss. Code Ann.
§ 45-9-31.

¶42. The caveats noted in the majority's treatment of this case also must be considered. Pursuant to
Miss. Code Ann. § 45-9-31, hospitals are required to provide certain medical information to police.
The appellee does not argue that this statutory requirement encroaches upon the physician/patient
privilege. Accordingly, there is no need to redact information as a result of disclosure pursuant to
statute. Rather, it is simply a matter of trusting hospitals and health care providers to follow the
statute. In addition, while the majority suggests that disclosed medical records be redacted of
patients' personal information, the majority does not make clear who will be privy to the information
released by hospitals. Without implementing the proper safeguards, broad dissemination of this
medical information could implicate constitutionally protected privacy rights. This Court should
consider more closely the possible adverse consequences to the patients that might flow from such a
disclosure, especially in relation to those patients who are in no way related to any criminal activity.

¶43. Finally, it must also be noted that there remains a question as to establishment of probable cause
here. As the majority notes, the tests to determine the source of blood on the bottle had not returned
from the Mississippi Crime Lab before the grand jury subpoena of the hospital's medical records or
before the search warrant. Absent this preliminary showing of probable cause, neither the grand jury
subpoena nor the search warrant for medical records satisfies the requirements of the Fourth
Amendment.

¶44. It is for the above stated reasons that I respectfully dissent. I would affirm the circuit court
below.

SULLIVAN, P.J., AND BANKS, J., JOIN THIS OPINION.




1. Miss. R. Evid. 503(d) Exceptions.

     (1) Proceedings for Hospitalization. There is no privilege under this rule in a proceeding to
     hospitalize the patient for mental illness, if the physician or psychotherapist in the course of
     diagnosis or treatment has determined that the patient is in need of hospitalization.

     (2) Examination by Order of Court. If the court orders an examination of the physical, mental
     or emotional condition of a patient, whether a party or a witness, there is no privilege under this
     rule with respect to the particular purpose for which the examination is ordered unless the court
     orders otherwise.

     (3) There is no privilege under this rule as to an issue of breach of duty by the physician or
     psychotherapist to his patient or by the patient to his physician or psychotherapist.


2. Name, address, phone number, social security number, or anything else that could be used to
identify the patients.

3. The majority opinion states that "[t]he lower court erred by quashing the subpoena duces tecum
and the search warrant, though the circuit judge acted in strict and technical accordance with then
existing law, for which he is commended."
