Assembly Bill A1254

                                BILL NUMBER:A1254A

TITLE  OF  BILL:    An act to amend the civil practice law and rules, in
relation to ex-parte interviews of  non-party  treating  physicians  and
health care providers in certain actions

PURPOSE:  To prohibit in a personal injury, medical, dental or podiatric
malpractice  or  wrongful  death action the defendant from conducting ex
parte interviews with the plaintiffs nonparty treating physicians.

SUMMARY OF PROVISIONS:   This bill prohibits  in  any  action  involving
personal  injury,  medical, dental or podiatric malpractice, or wrongful
death the defendant from conducting ex parte interviews with the  plain-
tiffs  nonparty  treating  physicians.  This bill also clarifies that an
attorney or the agent or employee of  an  attorney  who  represents  the
patient,  the  estate  of  the patient, or the natural or duly appointed
guardian of the patient whose condition is at issue in  the  action  may
conduct ex-parte conversations with a treating physician or other health
care provider of the patient.

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 Account-
ability Act of 1996 (42 use Section 1320(d) et seq.)  commonly  referred
to  as HIPAA and the defense bar's informal practice of privately inter-
viewing 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 dece-
dent, 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
3106(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 inter-
views  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 HIP AA 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.  JUTKOWJTZ
9  NY 3d 393 (2007) the Court of Appeals held that an attorney may inter
view an adverse party's treating physician privately where  the  adverse
party  has  affirmatively placed his or her medical condition in contro-
versy, although HIPAA imposes  certain  procedural  prerequisites.  This
holding  would  now permit defense counsel to obtain court ordered HIPAA
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  Read-
iness.  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 par to interviews with the  plain-
tiffs nonparty treating physicians.

LEGISLATIVE HISTORY: 2007 S5256A on Senate Calendar

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  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.