Assembly Bill A8964

                                BILL NUMBER:A8964

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.