This section covers important legal definitions in federal and state laws. Please refer to specific federal and state statutes to ensure currency and accuracy:

• Federal Statutes via Library of Congress
• Texas Constitution and Statutes
• Texas Legislature Online

Obtaining a Patient Report

It is recommended that health care professionals accurately and thoroughly document the verbatim patient history. It is imperative to preserve all evidence, including potentially exculpatory, mitigating, and/or impeachment evidence. The duty to turn over all evidence falls on the prosecution and is only triggered by the initiation of criminal charges. There is no general right to access to third party medical records and generally private health records are protected by HIPAA (45 CFR 164.512(f)(1)(ii)(A)-(B)). Check with the facility compliance or risk management offices.

Health care professionals have an obligation to collaborate with attorneys to ensure all records, including laboratory or radiological images, and photographs or images are available for legal proceedings.

United States Code

• Federal rape and sexual assault Code of Military Justice, (United States Code [U.S.C.]  §920.120 and §920.120b defines “sexual assault and rape.”)
• Emergency Medical Treatment and Labor Act (EMTALA) was enacted by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd) and requires anyone presenting to an emergency department be medically stabilized and treated regardless of their insurance status or ability to pay.
• Crawford v. Washington 541 U.S. 36 (2004). The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him” (Crawford v. Washington, March 8, 2004).
  • *In some cases, Crawford v. Washington may not prohibit the introduction of medical records by an appropriate medical professional, including statements the patient made for medical purposes during an examination, regardless of whether the patient testifies at trial. The judge makes the final determination of what testimony is allowed.
• Brady v. Maryland 373 U.S. 83 (1963). The Constitutional right to due process requires that the prosecution disclose to the defense any favorable evidence “material either to guilt or to punishment” (p. 83).
• 20 U.S.C.A. §1681 amended Title IX provides information about rights of students in an educational institution that receives federal funding (Pre-K through university, including private institutions) (20 U.S.C.A. §1681).

TEXAS STATUTES

1.  Texas Statues and Decision

• Child or minor:
  • Texas Penal Code §21.02 and §22.011 define child as “younger than 17 years of age” (Texas Penal Code §21.02 and §22.011).
  • Texas Family Code §101.003 defines child or minor as a “person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.”
  • Texas Family Code §101.003 defines child or minor as a “person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.”
• Elderly individual: “Person 65 years of age or older” (Texas Penal Code §22.04).
• Consent to treatment of a child:
  • Child consent: A child can “consent to the diagnosis and treatment of an infectious, contagious or communicable disease that is required by law or a rule to be reported by the licensed physician or dentist to a local health officer or the Texas Department of Health, including all diseases within the scope of Section 81.041, Health and Safety Code” (Texas Family Code §32.003).
  • Consent by non-parent: “The following persons may consent to medical, dental, psychological and  surgical treatment of a child when the person having the right to consent as otherwise provided by law cannot be contacted and that person has not given actual notice to the contrary: (6) a court; (7) an adult responsible for child under the jurisdiction of a juvenile court; or (8) a peace officer who has lawfully taken custody of a minor, if the peace officer has reasonable grounds to believe the minor is in need of immediate medical treatment (Texas Family Code §32.001).
  • Examination  without  consent of abuse or neglect of child:  “A physician, dentist,  or psychologist may examine the child without the consent of the child, the child’s parents, or other person authorized to consent: (b) An examination under this section may include X-rays, blood tests, photographs, and penetration of tissue necessary to accomplish those tests” (Texas Family Code §32.005).