Senate Bill S3296A

                                BILL NUMBER:S3296A

TITLE OF BILL:

An act
to amend the civil practice law and rules, in relation to
enacting the "patient privacy protection act"

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 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 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. .TUTKOWITZ 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 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:

2007-2008: S.5256A/A.8691-B
2009-2010: S.1514

FISCAL IMPLICATIONS:

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 with occurred prior
to such effective date.