                              COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Haley and Petty
Argued at Salem, Virginia


JEFFREY HAIRSTON
                                                                      OPINION BY
v.     Record No. 0686-06-3                                      JUDGE WILLIAM G. PETTY
                                                                      JUNE 19, 2007
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                               Charles J. Strauss, Judge

               Mark T. Williams (Williams, Morrison, Light and Moreau, on brief),
               for appellant.

               Eugene Murphy, Senior Assistant Attorney General (Robert F.
               McDonnell, Attorney General, on brief), for appellee.


       A jury convicted Jeffrey Hairston of five counts of indecent liberties with a person with

whom he had a custodial relationship in violation of Code § 18.2-370.1, and five counts of carnal

knowledge, in violation of Code § 18.2-63. Hairston challenges his convictions, arguing that the

trial court erred when it quashed his subpoena duces tecum seeking the victim’s counseling records

from Dr. Sue Bendewald and her employer, Whole Counsel Associates. For the reasons stated

below, we disagree with Hairston, and affirm his convictions.

                                          I. BACKGROUND

       On appeal, we view the evidence in the light most favorable to the Commonwealth, the

party prevailing below, and grant to it all reasonable inferences fairly deducible from the evidence.

Ragland v. Commonwealth, 16 Va. App. 913, 915, 434 S.E.2d 675, 676-77 (1993). So viewed, the

record shows that Hairston issued a subpoena duces tecum seeking the victim’s counseling records

from Dr. Bendewald. Specifically, Hairston requested “copies of all notes, including but not limited
to progress notes; copies of all therapy reports, copies of all evaluations and diagnosis; records of all

statements made by [the victim].” The subpoena duces tecum was supported by an affidavit, and

Hairston properly noticed the Commonwealth’s attorney. The Commonwealth moved the trial

court to quash the subpoena duces tecum.

        At a hearing addressing the motion to quash, the Commonwealth’s attorney explained that

Dr. Bendewald had called him about the subpoena because “she was concerned that the subpoena

did not comply with the HIPAA1 requirements of giving notice to the victim and [giving the victim]

an opportunity to move to quash” the subpoena duces tecum. The Commonwealth also argued that

the subpoena duces tecum was a “fishing expedition” and was improper under our decision in Farish

v. Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986). The trial court quashed the subpoena

duces tecum. Following a jury trial, Hairston was convicted and sentenced to a total of forty years

imprisonment. This appeal followed.

                                             II. ANALYSIS

        We hold that the trial court correctly quashed the subpoena duces tecum because it did not

comply with Code § 32.1-127.1:03, which governs the privacy of health records in Virginia.2 We

analyze the trial court’s interpretation and application of a statute de novo. Ainslie v. Inman, 265

Va. 347, 352, 577 S.E.2d 246, 248 (2003).




        1
          HIPAA refers to a federal statute, the Health Insurance Portability and Accountability
Act of 1996, 42 U.S.C. § 1320d et seq. HIPAA does not govern the issuance of subpoenas under
state law, but Virginia has enacted its own statute governing the privacy of health records. The
Virginia Health Records Privacy Law, as discussed infra, specifically discusses the requirements
for obtaining medical or counseling records pursuant to a subpoena duces tecum and was cited in
the parties’ briefs and at oral argument in this case.
        2
        Because we affirm the trial court’s decision on these grounds, we need not discuss
whether the subpoena duces tecum properly sought relevant information.
                                              -2-
                              A. Application of Code § 32.1-127.1:03

        In coming to this conclusion, we must initially determine whether Code § 32.1-127.1:03

pertains to the subpoena at issue before us. The statute recognizes a patient’s right of privacy in the

content of his or her medical records. Code § 32.1-127.1:03. Subsection A of the statute states,

“except when permitted or required by this section or by other provisions of state law, no health care

entity, or other person working in a health care setting, may disclose the records of a patient.” Id.

Subsection B of Code § 32.1-127.1:03 defines “health care entity” as, inter alia, a “health care

provider.” In turn, “health care provider” is defined as one of “those entities listed in the definition

of ‘health care provider’ in § 8.01-581.1.” Id. The term “health care provider” as defined in Code

§ 8.01-581.1 includes clinical psychologists, clinical social workers, and professional counselors.

        Subsection D carefully delineates under what circumstances a health care entity may

release health records, including, as pertinent to this case, “[i]n compliance with a subpoena

issued in accord with subsection H.” Code § 32.1-127.1:03(D). Subsection H applies very

broadly, stating that “no party . . . to a criminal . . . action or proceeding shall request the

issuance of a subpoena duces tecum for another party’s health records [or those of a nonparty

witness] . . . ” unless that party complies with the requirements of Subsection H. Code

§ 32.1-127.1:03(H) (emphasis added).

        We conclude that Code § 32.1-127.1:03 applies in this case. Dr. Bendewald was

employed by a counseling center, and the type of records sought from her related to her

counseling sessions with the victim, a nonparty witness in this case. 3 See Code

§ 32.1-127.1:03(B) (defining “health record” as “the substance of any communication made by

an individual to a health care entity in confidence during or in connection with the provision of



        3
         We also note that Hairston conceded at oral argument that Dr. Bendewald is a health
care provider within the meaning of the statute.
                                               -3-
health services . . .” and “psychotherapy notes” as “comments, recorded in any medium by a

health care provider who is a mental health professional, documenting or analyzing the contents

of conversation during [counseling]”). Thus, Code § 32.1-127.1:03 applies to the subpoena

duces tecum in this case.

                               B. Hairston’s Subpoena Duces Tecum

       Next, we address whether Hairston met the statutory requirements for a subpoena duces

tecum seeking medical or counseling records. Our review of the record indicates that, instead of

complying with the specific requirements of Code § 32.1-127.1:03, Hairston only complied with

the general requirements of Rule 3A:12(b): it was supported by an affidavit and it properly

noticed the Commonwealth’s attorney. 4 However, when seeking medical or counseling records,

counsel must comply with the applicable, specific privacy provisions of Code § 32.1-127.1:03,

as well as the general requirements of Rule 3A:12(b).

       This Court has never explicitly addressed whether subpoenas duces tecum must comply

with Code § 32.1-127.1:03; however, the plain language of the statute requires that they do so.

When interpreting a statute, we must “apply the plain language of a statute unless the terms are

ambiguous, or applying the plain language would lead to an absurd result.” Boynton v. Kilgore,

271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006) (citations omitted). We are also responsible to

“‘ascertain and give effect to the intention of the legislature’” which is “usually self-evident from

the words used in the statute.” Id. at 227, 623 S.E.2d at 925-26 (quoting Chase v.


       4
           Rule 3A:12(b) states:

                Upon notice to the adverse party and on affidavit by the party
                applying for the subpoena that the requested writings or objects are
                material to the proceedings and are in the possession of a person
                not a party to the action, the judge or the clerk may issue a
                subpoena duces tecum for the production of writings or objects
                described in the subpoena.

                                                -4-
DaimlerChrysler Corp., 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003)). This statute is not

ambiguous, and the application of its provisions will not lead to an absurd result.

       On the contrary, Code § 32.1-127.1:03(H) clearly sets out specific conditions for the

issuance of such a subpoena, including: (1) providing a copy of the subpoena duces tecum to a

nonparty witness; (2) providing a nonparty witness with a “Notice to Patient,” informing the

witness of his or her right to file a motion to quash with the clerk of court; and (3) providing the

health care entity a “Notice to Providers,” advising the entity that if it receives notice of a motion

to quash or if it moves to quash, it must provide the records to the clerk of court in a sealed

envelope.

       The General Assembly clearly expressed its intent that “nonparty witnesses,” like the

victim in this case, be notified that their medical records are being sought in discovery, that they

receive information concerning their right to move the trial court to quash the subpoena seeking

those records, and that health care entities be instructed on how to protect their patients’ privacy

during a legal proceeding. It is apparent from an examination of the subpoena duces tecum

included in the record before us that Hairston made no attempt to meet the requirements of Code

§ 32.1-127.1:03(H). The subpoena does not include any of the required notices, and the record

reveals that Hairston did not notify the victim that he was seeking her counseling records, as

required by the statute. Based on these facts, we conclude that the trial court was correct in

quashing the subpoena duces tecum.

                C. Relationship between Rule 3A:12(b) and Code § 32.1-127.1:03

       Finally, we address the relationship between Rule 3A:12(b) and Code § 32.1-127.1:03.

Code § 8.01-3 empowers our Supreme Court to prescribe the rules of practice and procedure for

the courts of this Commonwealth; however, it also provides, in pertinent part, that the General

Assembly “may, from time to time, by the enactment of a general law, modify or annul any rules

                                                -5-
adopted or amended pursuant to this section. In the case of any variance between a rule and an

enactment of the General Assembly such variance shall be construed so as to give effect to such

enactment.” Code § 8.01-3(A), (D). Further, our Supreme Court has determined that “there is

no variance” between a rule and a statute when both “provisions seek to promote” the same

policy. Waterman v. Halverson, 261 Va. 203, 206-07, 540 S.E.2d 867, 868-69 (2001); cf.

Capelle v. Orange County, 269 Va. 60, 65, 607 S.E.2d 103, 105 (2005) (noting the basic

principle of statutory interpretation that when one statute addresses a subject in a general manner

and another addresses a part of the same subject in a more specific manner, the two statutes

should be harmonized, if possible, and when they conflict, the more specific statute prevails).

       Here, we determine that there is no conflict between Rule 3A:12(b) and Code

§ 32.1-127.1:03. Like the provisions at issue in Waterman, these provisions both seek to

promote the same policy: here, the orderly issuance of subpoenas duces tecum. Thus, we read

the rule and the statute in harmony, and conclude that while the statute in no way “nullifie[s] or

invalidate[s] any portion of the rule,” Waterman, 261 Va. at 207, 540 S.E.2d at 869, the statute

creates a specific procedure that parties seeking medical or counseling records must follow. We

therefore conclude that even when, as here, a subpoena duces tecum complies with Rule

3A:12(b) and follows the form of the sample subpoena duces tecum included in the appendix to

the rules of court, it will not be sufficient to request medical or counseling records in light of

Code § 32.1-127.1:03.

                                          III. CONCLUSION

       For the reasons discussed in this opinion, the trial court correctly quashed the subpoena

duces tecum seeking the victim’s counseling records. We affirm Hairston’s convictions.

                                                                                            Affirmed.




                                                 -6-
