Senate Bill S3203

                                 BILL NUMBER:  S3203A

 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 plaintiffs 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 Accountability Act of
1996 (42 use Section 1320(d) et seg.) 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 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 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 inter view 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 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 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
defendant is barred from conducting such ex parte interviews with the
plaintiffs nonparty treating physicians.

 LEGISLATIVE HISTORY :
S5256 (2008 REFERRED TO CODES

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
None.

 EFFECTIVE DATE :
Shall take effect on the thirtieth day after it shall become law and
shall apply to all actions involving personal injury, medical, dental
or podiatric malpractice, or wrongful death filed on and after such
date and to all such actions pending on such effective date except as
to conduct prohibited by section one of this act which occurred prior
to such effective date.