                              SUPERIOR COURT
                                       OF THE
                          STATE OF DELAWARE
Jeffrey J Clark                                                Kent County Courthouse
Judge                                                             38 The Green
                                                                Dover, DE 19901
                                                                  302-735-2111

                                January 2, 2018


Laura Nastase Najemy, DAG                     Eugene J. Maurer, Jr., Esq.
Department of Justice                         Elise K. Wolpert, Esq.
900 North King Street                         Eugene J. Maurer, Jr., P. A.
Wilmington, DE 19801                          1201-A King Street
                                              Wilmington, DE 19801

       RE: State v. Grace Liu (aka Grace Yu aka I-Yin Liu)
           I.D. No. 1709017188

                           Submitted: December 22, 2017
                             Decided: January 2, 2018

Counsel:

       The State charged Defendant Grace Liu (hereinafter “Dr. Liu”) with one count
of health care fraud for alleged fraudulent Medicaid billing, one count of non-
compliance with bond conditions, and fourteen separate counts of endangering the
welfare of children. The endangering the welfare charges allege that Dr. Liu, through
her dental practice, dangerously permitted non-certified dental assistants to administer
nitrous oxide to children under her care.
       The State issued an Attorney General’s subpoena to Dr. Liu and her dental
practice, The Smile Place, seeking copies of “any and all medical records, whether in
electronic or paper form” involving the fourteen alleged child victims.        Dr. Liu
challenges the appropriateness of the subpoena arguing that it unreasonably violates
her rights against unreasonable searches and seizures.      Accordingly, she filed the
instant motion to quash the subpoena.
       After evaluating the scope of the subpoena, the Court finds it reasonable. On
balance, it specifies the matters sought with reasonable particularity, and it requires
production of only dental records relating to the fourteen minor patients who were
allegedly administered nitrous oxide by unqualified personnel. Finally, under the
circumstances of this case, the documents sought do not cover an unreasonable amount
of time. Moreover, the Court also finds that the reasonableness of the subpoena is
significantly bolstered by Dr. Liu’s agreement pursuant to the Delaware Medical
Assistance Program to produce upon request all medical records involving Medicaid
billed patients. For these reasons and those that follow, Dr. Liu’s motion to quash the
Attorney General’s subpoena is DENIED. Dr. Liu and her dental practice shall produce
the requested records within a reasonable time.

Standard for Reviewing the Enforceability of an Attorney General’s Subpoena

       The Attorney General has statutory authority to seize evidence pursuant to an
Attorney General’s subpoena.1           The Delaware Supreme Court has held that the
Attorney General has no independent authority to enforce its subpoenas after issuance. 2
If one served with a subpoena does not voluntarily comply, the matter must be resolved
either through a motion to enforce the subpoena or a motion to quash the subpoena. 3
Either will trigger court review.4
       Because Attorney General subpoenas often implicate privacy interests, the
Fourth Amendment of the United States Constitution requires that the subpoena be


1
  29 Del C. §§ 2504(4) & 2508(a).
2
  Johnson v. State, 983 A.2d 904, 920 (Del. 2009).
3
  Id.
4
  Id.
                                                 2
“reasonable. 5 Delaware Courts have settled on a three part test to determine if such a
subpoena is reasonable. Namely,

        [i]n order to meet the test of reasonableness, (1) the subpoena must specify
        the materials to be produced with reasonable particularity, (2) the subpoena
        must require the production only of materials relevant to the investigation,
        and (3) the materials must not cover an unreasonable amount of time.6

                                           Discussion

       The subpoena at issue seeks “[a] complete copy of any and all medical records,
whether in electronic or paper form for the following patients:” 7 It then lists fourteen
minors by name, date of birth, and Medicaid identification number. 8 The State proffers
that the fourteen listed minors are the same minors referenced by initials in the
indictment. Because the subpoena does not limit the time frame of records it seeks,
the request is sufficiently broad to include all records in Dr. Liu’s and her practice’s
possession relating to the fourteen patients at issue. As a threshold matter, although the
reasonableness of its scope remains in dispute, there is no ambiguity regarding what
records it seeks.
       Dr. Liu moves to quash the subpoena arguing that it does not meet the
reasonableness requirement. She argues that it is overbroad, and seeks material outside
what would be a reasonable length of time.            The State argues to the contrary. The
State also relies heavily on the Medicaid provider agreement, signed by Dr. Liu. In
that agreement, in exchange for her and her practice’s acceptance of Medicaid
payments, she as the provider
        agrees to maintain or to make available . . . such records as are
        necessary or deemed necessary by the [Delaware Medicaid Assistance

5
  Id. at 921.
6
  Id. (citing In re Blue Hen Country Network, 314 A.2d 197, 201 (Del. Super. Ct. 1973).
7
  States Response, Ex. 3.
8
  Id.
                                                3
          Program] . . .. All records shall be made available at once and without
          notice to authorized . . . State representatives, including but not limited
          to Delaware’s Medical Fraud Control Unit . . .. The Provider shall
          retain medical, financial and other supporting records relating to each
          DMAP claim for not less than five (5) years after the claim is
          submitted.9

         Both parties aptly argued the application of the three factors to the subpoena at
issue. First, with regard to the requirement that the subpoena specifies the materials to
be produced with reasonable particularity, Dr. Liu argues that the request is too broad
since it goes beyond the allegations of improper administration of anesthesia.
According to Dr. Liu, a request for the entire patient file is too broad. The State
counters that the entire file request regarding these fourteen individuals is finite and
sufficiently particular. It argues that items included within the complete files such as
prior medical history, billing information, and the full records may reveal the
surrounding circumstances of the allegedly improper use of nitrous oxide.
         Here, the Court finds the request to be sufficiently particular to satisfy the
reasonableness requirement. Identity of witnesses and persons administering the
anesthesia, billing information (which is also implicated through a separate fraud
charge), and medical history of patients who may have complicating medical
conditions making inappropriate the use of nitrous oxide, are reasonable items to
request.      Request for the fourteen distinct, though complete patient files, is not
unreasonable. In fact, most germane to this factor is the fact that both parties agree that
the request encompasses the entire file. Accordingly, it is sufficiently particular to
place Dr. Liu on notice regarding the items sought.
         Secondly, for many of the same reasons, the Court finds that the matters sought
are relevant to the Attorney General’s investigation. The files included in the request



9
    State’s Response, Ex. 2.
                                               4
are limited to fourteen patients that were allegedly endangered by the doctor’s
treatment.     The subpoena does not request overly broad materials such as medical
records for all patients of the practice, or even for all patients receiving nitrous oxide.
Rather, the request is limited to those children who allegedly received the dangerously
administered nitrous oxide from unqualified personnel.
       Lastly, Dr. Liu argues that the requested materials cover an unreasonable amount
of time. Namely, she argues that in some cases, the requested records predate the five
year statute of limitations10, and therefore cannot be relevant. The State counters that
evidence of prior anesthesia use in such records may be relevant and admissible
pursuant to Delaware Rule of Evidence 404(b). Dr. Liu responds that such evidence
would be inadmissible character evidence. Since character evidence is inadmissible
according to Dr. Liu, it cannot be relevant.
       The Court finds that requesting the complete medical records for these fourteen
children, which in some cases will predate the statute of limitations, is not temporally
unreasonable for two reasons. First, the fourteen patient files requested involve minors.
Their dates of birth included on the subpoena establish that most are less than ten years
old, and only two are approaching eighteen years of age. Furthermore, the Court is
able to apply a common understanding that children often do not first attend a dental
appointment near birth, but rather first visit a dentist some time thereafter. In this
regard, the ages of the patients at issue self-limit the length of the treatment records
requested.
       Moreover, those portions of the files that span beyond the statute of limitations
are properly and reasonably relevant for Delaware Rule of Evidence 404(b) purposes.
The Court certainly does not find, absent an analysis as required by Getz v. State11, that


10
   11 Del C. § 205(b)(1); see also 11 Del C. § 205(c) (providing a date of discovery accrual of the
statute of limitations in the cases of alleged fraud).
11
   538 A.2d 726 (Del. 1988).
                                                  5
evidence of any prior nitrous oxide administration, is admissible at trial. On the other
hand, after such an analysis, it may very well be. Since the State as a proponent offers
a reasonable basis to seek to admit such evidence, it is not unreasonable under the
circumstances of this case for the State to request the entire medical files of these
limited number of patients.
      Lastly, stamped upon the Court’s evaluation of all three reasonableness factors,
is the Medicaid Services contract signed by Dr. Liu. The care for the fourteen patients
at issue was paid for by Medicaid. Both the patients and the care at issue was directly
within the scope of that agreement. In the agreement, Dr. Liu specifically agreed to
provide to the State upon request all records in her possession “at once”. While the
Court appreciates Dr. Liu’s argument that the agreement is contractual and should not
impact the Court’s analysis regarding this criminal subpoena, the nature of the
agreement nevertheless has overlapping relevance to the degree of privacy expected by
Dr. Liu and her practice. Moreover, it also follows that it is not unreasonable for the
State to request records by subpoena that it has the right to request by contract. In this
regard, the existence of Dr. Liu’s contractual obligation to provide the records also
stamps an indicia of reasonableness upon all three factors.
                                      Conclusion
      For the reasons discussed, Dr. Liu’s motion to quash the Attorney General’s
subpoena is DENIED. Dr. Liu and her practice The Smile Place, shall comply with
the Attorney General’s subpoena within a reasonable amount of time.
      IT IS SO ORDERED


                                                     /s/Jeffrey J Clark
                                                           Judge




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