New York Courts Grapple with Informal Defense Interviews in the Wake of Privacy Act, but a Recent Decision Provides Momentum to Allow Practice to Continue
April, 2005
The issue of whether defense counsel can interview a plaintiff’s treating physician in the wake of the federal Health Insurance Portability and Accountability Act ("HIPAA"), which went into effect in 2003, has generated considerable controversy in the medical malpractice bar. Prior to HIPAA, the general rule in New York was that defense counsel in medical malpractice actions could conduct ex parte interviews with a plaintiff’s prior and subsequent treating physicians once discovery was completed and the case was placed on the trial calendar. See Zimmerman v. Jamaica Hosp. Inc., 143 A.D.2d 86, 531 N.Y.S.2d 337 (2d Dep’t 1988); 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). This general rule was premised 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), holding that a personal injury plaintiff waives the physician-patient privilege by bringing the action and affirmatively placing their physical condition in issue.
However, once HIPAA and its affiliated regulations went into effect, creating a federal floor for the protection of a patient’s health information, the New York Courts have inconsistently ruled on whether defense counsel should be permitted to continue these informal interviews of treating physicians. One court has refused to authorize post-Note Of Issue interviews with treating physicians, speculating that during the course of private interviews a treating physician may release information about a patient that has not even been communicated to that patient, and that defense counsel may inquire into matters that do not relate to the condition at issue. Browne v. Horbar (NYLJ, Dec. 6, 2004). Another court has allowed the informal interviews of treating physicians to continue, but has placed an affirmative duty on defense counsel to create notes or memos of any statements made by the treating physician interviewed, and requiring the exchange of the complete, unedited copies of these materials. Beano v. Post, Index No. 5694/2001 (Sup. Ct. Queens Cty., March 12, 2004).
Recently, however, a Manhattan Supreme Court Judge has ruled on the issue, providing momentum to allow these informal interviews by defense counsel to continue. Smith v. Rafalin, Index No. 117182/03, (Sup. Ct. New York Cty. March 24, 2005). In Smith, a medical malpractice action, Judge Sklar ordered plaintiff to provide defense counsel with specific authorization permitting defense counsel to request ex parte interviews of the treating physicians; and, he further ordered defense counsel to turn over to plaintiff’s counsel copies of “any records of that physician not previously received during disclosure, but need not turn over any materials, notes, memoranda or recordings resulting from any interview.” (emphasis added). Id.
In laying a foundation, Judge Sklar pointed out that the privacy provision of HIPAA sets a federal floor for the production of Protected Health Information, aimed at States that did not previously protect identifiable health care information, unlike New York, which already had these protections in place. He further wrote that the privacy provision was not intended to create a physician-patient privilege and was not intended to change substantive law. Further, Judge Sklar supported the substantive New York law observing that plaintiffs obviously have access
to their own doctors, and to deny defense a chance to gain similar access would be “one-sided” and “manifestly unfair." Id.
In reconciling the Privacy Act provisions of HIPAA with New York law, Judge Sklar ruled that a plaintiff must issue an authorization required for the release of medical information under the federal law. By bringing a malpractice lawsuit, he reasoned, the plaintiff had waived the physician-patient privilege, including the right to refuse the authorization required by federal statute. Id.
Finally, Judge Sklar took issue with other opinions which concluded that any materials compiled by defense counsel during the interview must be turned over to plaintiffs, such as notes taken during the interview as well as any audio or video tape made of the session. Id. Judge Sklar noted that the Appellate Division had ruled that materials prepared by defense attorneys reflecting what doctors had said during the interviews were protected by the work-product privilege. Fraylich v. Maimonides Hosp., 251 A.D.2d 251, 674 N.Y.S.2d 668 (1st Dep’t 1998). He further pointed out that when a plaintiff’s lawyer interviews his client’s doctors, there is no reciprocal obligation that he share any materials with the defense which would disclose the substance of the discussions.
Learning Point:
Although each practitioner must be aware of the opinions of their particular Judge, which varies from court to court even in the same Department, Judge Stanley Sklar’s decision provides counsel with compelling arguments for the continued practice of informal interviews of treating physicians even in the wake of HIPAA. •
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