Prohibits interviews of other party's treating physicians or health care providers in malpractice or wrongful death actions

Existing law

Neither CPLR Article 31 nor the Uniform Rules includes a provision authorizing defense counsel on behalf of his or her client to meet privately with plaintiffs nonparty treating physician. Article 31 of the CPLR specifically provides the permissible rules of discovery. In its decision of Arons v. Jutkowitz 9 NY 3d 393 (2007) the Court of Appeals ignored the rules of Article 31 and by judicial fiat created a new rule. This bill would correct that ill-advised decision.

Justification

This legislation has become necessary because of the interplay between the Federal Health Insurance Portability and Accountability Act of 1996 (42 use Section 1320(d) et seq.) commonly referred to as HIPAA and the defense bar's informal practice of privately interviewing plaintiffs' nonparty treating physicians, sometimes even after a note of issue has been filed.

Frequently in actions involving personal injury, medical malpractice and wrongful death defense counsel have requested that plaintiff execute authorizations which would, pursuant to HIPAA, have permitted them after the filing of the note of issue to informally and privately interview nonparty treating physicians who rendered care to the plaintiff or decedent, as the case may be, related to the action. Plaintiffs believing that such interview are either unwarranted or not authorized by law have often refused to execute such authorizations and this has created a great deal of legal and judicial comment about the efficacy of these post note of issue requests for discovery.

It has never been in much question that a plaintiff to a personal injury or medical malpractice action waives the physician-patient privilege with respect to those physical or mental conditions which he or she has alternatively placed in issue in the lawsuit. Defendants in such actions have an absolute right to disclosure regarding the relevant medical conditions in issue and they may utilize any of the disclosure devices set forth in CPLR Article 31 or the Uniform Rules for the NYS Trial Courts (Uniform Rules) to obtain such disclosure. Included in these is a provision that upon the issuance of a subpoena a defendant may depose a plaintiffs nonparty treating physician pursuant to CPLR 31 06(b). However, neither CPLR Article 31 nor the Uniform Rules includes a provision authorizing defense counsel on behalf of his or her client to meet privately with plaintiffs treating physician. Further because of the availability of disclosure under CPLR Article 31 such private interviews have been prohibited during discovery prior to the filing of a note of Issue.

Since the adoption of HIPAA in 1996 issues over patient privacy has been of increasing concern and defense counsel have faced a practical dilemma in attempting to speak privately with plaintiffs nonparty treating physicians. Physicians are now requiring either written authorizations signed by the plaintiff which comply with HIPAA and which permit oral communication or a court order authorizing such oral communications which likewise complies with HIPAA. When plaintiffs refuse after the filing of a note of issue to execute such authorizations defendants have moved to compel plaintiffs execution of such authorizations. This has generated a multitude of cases and most recently in ARONS V. JUTKOWITZ 9 NY 3d 393 (2007) the Court of Appeals held that an attorney may interview an adverse party's treating physician privately where the adverse party has affirmatively placed his or her medical condition in controversy, although HIPAA imposes certain procedural prerequisites. This holding would now permit defense counsel to obtain court ordered HIPPA compliant authorizations at any time and use them at any time both prior to and after the filing of the Note of Issue and Certificate of Readiness. This ignores CPLR Article 31, and creates post-note of issue discovery, which is expressly prohibited by the Uniform Rules unless the party seeking the discovery can demonstrate "unusual or unanticipated circumstances developed subsequent to the filing of the Note of Issue and Certificate of Readiness which requires additional pretrial proceedings to prevent substantial prejudice." (22NYCRR Sec. 202.21(d).

Therefore, this legislation would statutorily reverse this judicial ruling and make it clear that in any action involving personal injury, medical, dental or podiatric malpractice, or wrongful death the defend· ant is barred from conducting such ex parte interviews with the plain- tiffs nonparty treating physicians.

Legislative history

2007-2008: S.5256A/A.8691-B

Fiscal implications

None.

Effective date

Immediately and shall apply to all actions involving personal injury, medical, dental or podiatric malpractice, or wrongful death filed on and after such date.