Prosecutors may seek medical records with a search warrant if the content of the medical record is relevant to the underlying criminal case. This is common in Medicare/Medicaid fraud prosecutions, where the record is relevant to determining if the care that was billed was necessary and proper. Search warrants must be approved by a court to ensure that there is probable cause to believe that the search will turn up evidence of a crime. When medical records are being sought, the court will also consider “… the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.” [ United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980).]

In most cases that involve billing fraud, the court will allow the discovery of the Medicare/ Medicaid patients’ medical records. The Health Insurance Portability and Accountability Act (also known as the Kassebaum-Kennedy bill) makes fraud against private medical care insurers a federal crime. This means that in the future, medical care practitioners can expect to see search warrants for private patient records, as well as for Medicare/Medicaid patients. The courts do recognize that the physician has the right to contest these orders on behalf of the patients because the patients have no way of knowing about the order and thus cannot assert their rights. [ In re Search Warrant (Sealed), 810 F.2d 67 (3d Cir. 1987).]