TX: Common law and HIPAA creates a privacy interest in medical records; but GJ subpoena good enough

A hospital patient (here suspected of DUI) has a privacy interest in his medical records sufficient to give standing to challenge their acquisition by the state, but prior to HIPAA under state case law and bolstered by HIPAA. But, the state can still get the information by grand jury subpoena. State v. Huse, 2016 Tex. Crim. App. LEXIS 72 (April 13, 2016):

Finally, Appellee points to a particular provision in HIPAA mandating that, in the event of a conflict between provisions of state law and the limitations on disclosure of medical information contained in HIPAA itself, it is the federal law that must prevail over the state law unless the state law is more protective of an individual’s privacy interests. 45 C.F.R. § 160.203(b).10 From this, Appellee seems to argue that we must abandon our holding in Hardy because it represents state common law that is less protective than—and therefore preempted by—this preemption provision in HIPAA. Our response to this contention is two-fold. First, Hardy’s resolution of the issue of Fourth Amendment standing was a holding of federal constitutional dimension, not a state-law ruling. We therefore perceive no conflict between state law and HIPAA that must be resolved in favor of the latter. Second, and in any event, even assuming that Hardy represented a holding of state-law dimension, it is not inconsistent with HIPAA. The blood alcohol test results in Hardy were obtained via a grand jury subpoena. 963 S.W.2d at 518, 527. As we have already observed, HIPAA expressly permits the disclosure of otherwise “protected health information” when it is sought by way of a grand jury subpoena. In short, nothing about HIPAA’s preemption provision prohibits us from relying upon HIPAA itself as confirmation that society has still not recognized a reasonable expectation of privacy in “blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident”—at least not an expectation of privacy compelling enough to withstand invasion by a grand jury subpoena. For these reasons, it is Appellee’s preemption argument, not our limited holding in Hardy, that must fall.