Appellate Court Holds That Medical Malpractice Defense Attorneys Lack the Right to Ex Parte Interviews With Plaintiff's Non-Party Treating Physicians Under HIPAA
December, 2006
The issue of whether defense counsel are entitled to ex parte interviews of the plaintiff’s non-party treating physicians in medical malpractice actions has generated controversy and resulted in inconsistent decisions by New York trial courts since the federal Health Insurance Portability and Accountability Act (42 USC §1320d et seq.; hereinafter “HIPAA”) went into effect in 2003. In a recent case of first impression regarding the interplay of the federal HIPAA statute and the defense bar’s informal practice of privately interviewing plaintiffs’ non-party treating physicians after a Note of Issue has been filed, the Appellate Division, Second Department unanimously held that defense counsel are not entitled to ex parte interviews of the plaintiff’s non-party treating physicians in the absence of statutory or regulatory authority requiring plaintiffs to execute authorizations permitting such private interviews, or the plaintiff’s consent. Arons v. Jutkowitz, 2006 WL 3530126 (2d Dep’t 2006), 2006 N.Y. Slip Op. 09139; see NYLJ December 5, 2006.
The well-settled New York rule prior to HIPAA, based on the Court of Appeals decision in Koump v. Smith, 25 N.Y.2d 287, 250 N.E.2d 857, 303 N.Y.S.2d 858 (1969), was that a plaintiff who commenced a medical malpractice action waived the physician-patient privilege with respect to those physical conditions which s/he affirmatively placed at issue. The waiver entitled defendants to obtain disclosure regarding the relevant physical condition at issue. Prior to the enactment of HIPAA, the general practice of defense counsel was to conduct ex parte interviews with a plaintiff’s non-party treating physicians after completion of discovery and filing of a Note of Issue. See Fraylich v. Maimonides Hosp., 251 A.D.2d 251, 674 N.Y.S.2d 668 (1st Dep’t 1998); Tiborshy v. Marorella, 188 A.D.2d 795, 591 N.Y.S.2d 547 (3d Dep’t 1992); Levande v. Dines, 153 A.D.2d 671, 544 N.Y.S.2d 864 (2d Dep’t 1989); Zimmerman v. Jamaica Hosp. Inc., 143 A.D.2d 86, 531 N.Y.S.2d 337 (2d Dep’t 1988).
HIPAA was enacted to further the federal goals of increased access to health care. To address concerns regarding patient privacy, HIPAA’s privacy rules were implemented in 2003 to control the “uses and disclosures of protected health information” by “covered entities.” 45 CFR §§ 160, 164, 164.502. This required physicians and other health care providers to develop policies that comply with the privacy rules to ensure against unauthorized disclosure of protected health information, but permitting disclosure of protected health information under specific circumstances, such as in response to a valid authorization executed by the patient, a court order, a subpoena, a discovery request, or “other lawful process.” 45 CFR §§164.530; 164.502[a][1]; 164.512[e][1][i] and [ii].
HIPAA’s privacy rules created a dilemma for medical malpractice defense counsel seeking private interviews with plaintiffs’ non-party treating physicians. In the wake of HIPAA, many treating physicians require either HIPAA-compliant written authorizations signed by the plaintiff, or a court order authorizing an ex parte interview with defense counsel. Defense counsel’s attempts to privately speak with non-party treating physicians have been hindered when a plaintiff refuses to execute an authorization specifically permitting the ex parte interview. A plethora of motion practice by defense counsel to compel plaintiffs’ execution of such authorizations followed, generating a number of inconsistent and confusing trial court decisions regarding whether, and under what circumstances, defense counsel may gain access to non-party treating physicians for private interviews. See Constantino v. Cooper, 12 Misc.3d 1174(A), 820 N.Y.S.2d 842 (1st Dep’t 2006); Ottinger v. Mausner, 11 Misc.3d 1070(A), 816 N.Y.S.2d 698 (1st Dep’t 2006); Holzle v. Healthcare Servs. Group, 7 Misc.3d 1027(A), 801 N.Y.S.2d 234 (1st Dep’t 2005); Smith v. Rafalin, 6 Misc.3d 1041[A], 800 N.Y.S.2d 357 (1st Dep’t 2005); Beano v. Post, Sup. Ct., Index No. 5694/01 (Sup. Ct., Queens County, Mar. 12, 2004); Browne v. Horbar, 6 Misc.3d 780, 792 N.Y.S.2d 314 (1st Dep’t 2004); Keshecki v. St. Vincent’s Medical Ctr., 5 Misc.3d 539, 785 N.Y.S.2d 300 (1st Dep’t 2004); O’Neil v. Klass, Sup Ct, Index No. 3808/02 (Sup. Ct. Kings County, Oct. 29, 2004).
Some courts granted the defendants’ motions and ordered plaintiffs to execute the pertinent authorizations, reasoning that ex parte interviews would be compliant with HIPAA’s procedural protections by either requiring specific language for the authorizations; requiring defense counsel to disclose any statements, notes, memoranda, documents, and recordings from the ex parte interviews; or by including a provision in the nature of a qualified protective order regarding the information disclosed at a private interview. See Constantino v. Cooper, supra; Smith v. Rafalin, supra; Beano v. Post, supra; O’Neil v. Klass, supra. Other courts, for various reasons, denied defense counsels’ motions, declining to compel plaintiffs to execute authorizations permitting private interviews where plaintiffs did not voluntarily consent. See Ottinger v. Mausner, supra; Holzle v. Healthcare Servs. Group, supra; Browne v. Horbar, supra.
In a case of first impression on this issue, the Appellate Division, Second Department recently ruled that plaintiffs in medical malpractice actions cannot be compelled to execute authorizations allowing their treating physicians to be privately interviewed by defense counsel. Arons, 2006 WL 3530126 (2d Dep’t), 2006 N.Y. Slip Op. 09139. In Arons, plaintiffs declined defendants’ post-Note of Issue request for HIPAA compliant authorizations which would permit defense counsel to conduct ex parte interviews with non-party treating physicians who rendered care to the decedent. Id. Following the plaintiffs’ refusal to execute the authorizations, defendants moved to compel their production. Id. The trial court granted defendants’ motion and directed the plaintiffs to provide HIPAA-compliant authorizations permitting the interviews. Id. On appeal by the plaintiffs, the Appellate Court reversed, finding that the trial court erred in granting the defendants’ motion compelling the plaintiffs to execute authorizations for this purpose. Id.
In reaching its decision, the Court determined that it was unnecessary to reconcile the privacy rules of HIPAA with New York law, the approach that the lower courts had been taking since the enactment of HIPAA and its affiliated regulations. Id. Instead, the Court reasoned that New York law alone was decisive on this issue, finding that precedent prohibits a trial court from ordering an unwilling plaintiff to execute authorizations permitting ex parte interviews with non-party treating physicians on grounds that such decisions “call for a direction outside the scope of discovery authorized by the CPLR or the Uniform Rules.” Id. In laying its foundation, the Court pointed out that “while courts are empowered to supervise disclosure, they must do so in accordance with the Uniform Rules and the provisions of CPLR Article 31.” Id.
The Court referenced a number of discovery devices provided by CPLR Article 31 and the Uniform Rules available to defendants in medical malpractice actions to obtain information regarding the plaintiff’s physical condition, citing such examples as CPLR 3121(a) and 22 NYCRR §202.17[b][2], which require a plaintiff to provide duly-executed and acknowledged written authorizations for the release of pertinent medical records, and CPLR 3106(b), permitting defendants to depose a plaintiff’s non-party treating physicians upon issuance of a subpoena. Id. The Court pointed out, however, that neither Article 31 nor the Uniform Rules include a provision which explicitly authorizes defense counsel to meet privately with a plaintiff’s treating physician and, unlike the production of medical reports and hospital records, there is no statutory or regulatory authority bestowed by Article 31 or the Uniform Rules which would allow a trial court to obligate plaintiffs to execute authorizations permitting such private interviews by defense counsel. Id. Accordingly, the Court concluded on this basis that permitting unsupervised, private and unrecorded interviews without the plaintiff’s consent “plainly exceeds the ambit of Article 31.” Id.
In further support of its position, the Court revisited the rule prohibiting private meetings between defense counsel and plaintiffs’ treating physicians first articulated in Anker v. Brodnitz, aff’d. 73 A.D.2d 589, 422 N.Y.S.2d 887, appeal dismissed 51 N.Y.2d 703, 432 N.Y.S.2d 1026, 411 N.E.2d 795, and subsequent cases which held that, despite the prohibition, a treating physician’s testimony should not be precluded at trial on grounds that defense counsel had private interviews with non-party treating physicians after the Note of Issue was filed. Arons v. Jutkowitz, 2006 WL 3530126 (2d Dep’t), 2006 N.Y. Slip Op. 09139 [citing Luce v. State of New York, 266 A.D.2d 877, 697 N.Y.S.2d 806, (4th Dep’t 1999); Fraylich v. Maimonides Hosp., 251 A.D.2d 251, 674 N.Y.S.2d 668, (1st Dep’t 1998); Tiborsky v. Martorella, 188 A.D.2d 795, 591 N.Y.S.2d 547 (3rd Dep’t 1992); Levande v. Dines, 153 A.D.2d 671, 544 N.Y.S.2d 864 (2d Dep’t 1989); Zimmerman v. Jamaica Hosp., 143 A.D.2d 86, 531 N.Y.S.2d 337 (2d Dep’t 1988)]. However, the Court stressed that these decisions “did not declare that defense counsel have a right to such informal, post-note of issue interviews, nor did we require plaintiffs to consent to them.”
Learning Point:
The Appellate Court’s decision in Arons sets forth that defense counsel lack the right to post-Note of Issue ex parte interviews with a plaintiff’s non-party treating physicians absent the plaintiff’s voluntary consent, despite the practical obstacles it imposes for defense counsel who seek private interviews. Hence, where a plaintiff refuses to voluntarily execute an authorization permitting defense counsel to privately meet with his/her non-party treating physicians, defense counsels’ communications (at least in the Second Department) with such treating physicians will be limited to non-party depositions on issuance of a subpoena. It remains to be seen whether the other New York appellate departments will follow suit in adopting the rule enunciated in Arons.
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