senate Bill S4586A

Signed By Governor
2011-2012 Legislative Session

Clarifies, that in the absence of a patient's authorization, a trial subpoena duces tecum seeking the production of medical records may be issued by the court

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Archive: Last Bill Status Via A7465 - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Aug 03, 2011 signed chap.307
Jul 22, 2011 delivered to governor
Jun 16, 2011 returned to assembly
passed senate
3rd reading cal.916
substituted for s4586a
Jun 16, 2011 substituted by a7465a
Jun 06, 2011 advanced to third reading
Jun 02, 2011 2nd report cal.
Jun 01, 2011 1st report cal.916
May 26, 2011 print number 4586a
amend and recommit to judiciary
Apr 13, 2011 referred to judiciary

Votes

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Bill Amendments

Original
A (Active)
Original
A (Active)

S4586 - Bill Details

See Assembly Version of this Bill:
A7465A
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §2302, R3122, CPLR

S4586 - Bill Texts

view summary

Clarifies, that in the absence of a patient's authorization, a trial subpoena duces tecum seeking the production of medical records may be issued by the court.

view sponsor memo
BILL NUMBER:S4586 REVISED 04/25/11

TITLE OF BILL:
An act to amend the civil practice law and rules, in relation to subpoe-
nas duces tecum for medical records

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

This measure would make clear that, in the absence of a patient's
authorization, a trial subpoena duces tecum seeking the production of
medical records may be issued under CPLR 2302(b) by a court, but not an
attorney, and that CPLR 3122, requiring a patient's authorization,
applies only to subpoenas issued during discovery.

In 2002, on our Advisory Committee's recommendation and at our request,
CPLR 3122 was amended, together with several other related CPLR
provisions, CPLR 2305(b), 3120, and 3122-a , to make it easier to obtain
discovery documents from a non-party witness and admit them into
evidence. L. 2002, c.575. The legislation eliminated the requirement
that a party seeking documents from a non-party witness obtain a court
order and a new, less cumbersome procedure was substituted. Among the
changes made to CPLR 3122, which governs objections to and compliance
with disclosure requests, was the inclusion of language at the request
of the Medical Society to protect non-party physicians who were served
with disclosure subpoenas seeking medical records. Language was
inserted in CPLR 3122 in 2002 to help protect medical providers from
unwittingly violating the physician-patient privilege by releasing
medical records sought by a subpoena without a patient's authorization.

Shortly thereafter, a judge in Richmond Civil Court in Campos v. Payne,
2 Misc.3d 921 (2003), held that the limitations imposed by CPLR 3122
left him without authority to order the production of medical records
pursuant to a trial subpoena on the eve of trial without the patient's
signed authorization. We understand that Campos is now widely followed.
It was. not our intent ill recommending the amendment of CPLR 3122,
however, that the requirement for such an authorization apply to trial
subpoenas and we do not believe the Legislature had that intent in
adopting our recommendation. We believe the result in Campos is inad-
visable as parties and the court need to have the ability to obtain
relevant records (including medical records) so that the parties' claims
and defenses can be fairly adjudicated.

This measure addresses the concerns of medical providers that they may
be violating the Health Insurance Portability and Accountability Act
("HIPAA") by releasing a patient's medical records absent a court order
by making it clear in the article governing subpoenas that, if a patient
has not authorized the release of medical records, then a subpoena duces
tecum for medical records may be issued only by a court and not by an
attorney. We recommend that CPLR 2302(b) be amended by adding a sentence

providing that absent an authorization a subpoena for medical records
may be issued only by a court.

Under the current language of CPLR 3122 and the ruling in Campos v.
Payne there is some question whether a court may "so order" a trial
subpoena duces tecum for medical records when the plaintiff has refused
to authorize the release of the records. The proposed amendment to CPLR
3122(a) resolves that uncertainty by making it clear that the require-
ment for an authorization is not applicable to a trial subpoena issued
by a court. The amendment is consistent with HIPAA, which provides that
"protected health information" may be released without an authorization
in response to an order of the court. 45 C.P.R. 164.512 (introductory
paragraph) and 164.512(e)(1)(i).

This measure would have no fiscal impact on the State. It would take
effect immediately.

2009-10 LEGISLATIVE HISTORY:

Senate 5960 (Sen. Schneiderman) (Codes)
Assembly 8318 (M. of A. Zebrowski) (Codes)

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4586

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 13, 2011
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

AN ACT to amend the civil practice law and rules, in relation to subpoe-
  nas duces tecum for medical records

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision (b) of section 2302 of the civil  practice  law
and  rules, as amended by chapter 136 of the laws of 2007, is amended to
read as follows:
  (b) Issuance by court. A subpoena to compel production of an  original
record or document where a certified transcript or copy is admissible in
evidence, or to compel attendance of any person confined in a penitenti-
ary  or  jail,  shall  be  issued  by the court. Unless the court orders
otherwise, a motion for such subpoena shall be  made  on  at  least  one
day's  notice  to  the  person having custody of the record, document or
person confined. A subpoena to produce a prisoner so confined  shall  be
issued  by  a  judge  to whom a petition for habeas corpus could be made
under subdivision (b) of section seven thousand two of this chapter or a
judge of the court of claims, if the matter is pending before the  court
of claims, or a judge of the surrogate's court, if the matter is pending
before  the  surrogate's  court, or a judge or support magistrate of the
family court, if the matter is pending before the  family  court,  or  a
judge  of the New York city civil court, if the matter is pending before
the New York city civil court and it has been removed thereto  from  the
supreme court pursuant to subdivision (d) of section three hundred twen-
ty-five  of  this  chapter.    IN  THE  ABSENCE OF AN AUTHORIZATION BY A
PATIENT, A SUBPOENA DUCES TECUM FOR THE PATIENT'S  MEDICAL  RECORDS  MAY
ONLY BE ISSUED BY A COURT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09303-01-1

S. 4586                             2

  S 2. Subdivision (a) of rule 3122 of the civil practice law and rules,
as  amended  by  chapter  575 of the laws of 2002, is amended to read as
follows:
  (a)  1.  Within  twenty  days of service of a notice or subpoena duces
tecum under rule 3120 or section 3121, the party or person to  whom  the
notice  or  subpoena  duces  tecum  is directed, if that party or person
objects to the disclosure, inspection  or  examination,  shall  serve  a
response which shall state with reasonable particularity the reasons for
each objection. If objection is made to part of an item or category, the
part  shall  be  specified.  [A  medical provider served with a subpoena
duces tecum requesting the production of  a  patient's  medical  records
pursuant  to this rule need not respond or object to the subpoena if the
subpoena is not accompanied by a written authorization by  the  patient.
Any  subpoena  served  upon  a  medical  provider requesting the medical
records of a patient shall state in conspicuous bold-faced type that the
records shall not be provided unless the subpoena is  accompanied  by  a
written  authorization  by  the  patient.]  The party seeking disclosure
under rule 3120 or section 3121 may move for an order under rule 3124 or
section 2308 with respect to any  objection  to,  or  other  failure  to
respond  to or permit inspection as requested by, the notice or subpoena
duces tecum, respectively, or any part thereof.
  2. A MEDICAL PROVIDER SERVED WITH A SUBPOENA DUCES TECUM, OTHER THAN A
TRIAL SUBPOENA ISSUED  BY  A  COURT,  REQUESTING  THE  PRODUCTION  OF  A
PATIENT'S  MEDICAL  RECORDS  PURSUANT  TO  THIS RULE NEED NOT RESPOND OR
OBJECT TO THE SUBPOENA IF THE SUBPOENA IS NOT ACCOMPANIED BY  A  WRITTEN
AUTHORIZATION BY THE PATIENT. ANY SUBPOENA SERVED UPON A MEDICAL PROVID-
ER  REQUESTING THE MEDICAL RECORDS OF A PATIENT SHALL STATE IN CONSPICU-
OUS BOLD-FACED TYPE THAT THE RECORDS SHALL NOT BE  PROVIDED  UNLESS  THE
SUBPOENA  IS  ACCOMPANIED  BY A WRITTEN AUTHORIZATION BY THE PATIENT, OR
THE COURT HAS ISSUED THE SUBPOENA OR OTHERWISE DIRECTED  THE  PRODUCTION
OF THE DOCUMENTS.
  S 3. This act shall take effect immediately.

S4586A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7465A
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §2302, R3122, CPLR

S4586A (ACTIVE) - Bill Texts

view summary

Clarifies, that in the absence of a patient's authorization, a trial subpoena duces tecum seeking the production of medical records may be issued by the court.

view sponsor memo
BILL NUMBER:S4586A

TITLE OF BILL:
An act
to amend the civil practice law and rules, in relation to subpoenas
duces tecum for medical records

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Advisory Committee on Civil Practice.

This measure would make clear that, in the absence of a patient's
authorization, a trial subpoena duces tecum seeking the production of
medical records may be issued under CPLR 2302(b) by a court, but not
an attorney, and that CPLR 3122, requiring a patient's authorization,
applies only to subpoenas issued during discovery.

In 2002, on our Advisory Committee's recommendation and at our
request, CPLR 3122 was amended, together with several other related
CPLR provisions, CPLR 2305(b), 3120, and 3122-a, to make it easier
to obtain discovery documents from a non-party witness and admit them
into evidence. L. 2002, c.575. The legislation eliminated the
requirement that a party seeking documents from a non-party witness
obtain a court order and a new, less cumbersome procedure was
substituted. Among the changes made to CPLR 3122, which governs
objections to and compliance with disclosure requests, was the
inclusion of language at the request of the Medical Society to
protect non-party physicians who were served with disclosure
subpoenas seeking medical records.
Language was inserted in CPLR 3122 in 2002 to help protect medical
providers from unwittingly violating the physician-patient privilege
by releasing medical records sought by a subpoena without a patient's
authorization.

Shortly thereafter, a judge in Richmond Civil Court in Campos v.
Payne, 2 Misc.3d 921 (2003), held that the limitations imposed by
CPLR 3122 left him without authority to order the production of
medical records pursuant to a trial subpoena on the eve of trial
without the patient's signed authorization. We understand that Campos
is now widely followed. It was not our intent in recommending the
amendment of CPLR 3122, however, that the requirement for such an
authorization apply to trial subpoenas and we do not believe the
Legislature had that intent in adopting our recommendation.
We believe the result in Campos is inadvisable as parties and the
court need to have the ability to obtain relevant records (including
medical records) so that the parties' claims and defenses can be
fairly adjudicated.

This measure addresses the concerns of medical providers that they may
be violating the Health Insurance Portability and Accountability Act
("HIPAA") by releasing a patient's medical records absent a court
order by making it clear in the article governing subpoenas that, if
a patient has not authorized the release of medical records, then a
subpoena duces tecum for medical records may be issued only by a
court and not by an attorney. We recommend that CPLR 2302(b) be


amended by adding a sentence providing that absent an authorization a
subpoena for medical records may be issued only by a court.

Under the current language of CPLR 3122 and the ruling in Campos·v.
Payne there is some question whether a court may "so order" a trial
subpoena duces tecum for medical records when the plaintiff has
refused to authorize the release ofthe records. The proposed
amendment to CPLR 3122(a) resolves that uncertainty by making it
clear that the requirement for an authorization is not applicable to
a trial subpoena issued by a court.
The amendment is consistent with HIP AA, which provides that
"protected health information" may be released without an
authorization in response to an order of the court. 45 C.P.R. 164.512
(introductory paragraph) and 164.512(e)(1)(i).

This measure would have no fiscal impact on the State. It would take
effect immediately.

2009-10 LEGISLATIVE HISTORY:

Senate 5960 (Sen. Schneiderman) [Codes]
Assembly 8318 (M. of A. Zebrowski) [Codes]

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4586--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 13, 2011
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed  to the Committee on Judiciary -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN ACT to amend the civil practice law and rules, in relation to subpoe-
  nas duces tecum for medical records

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision (b) of section 2302 of the civil  practice  law
and  rules, as amended by chapter 136 of the laws of 2007, is amended to
read as follows:
  (b) Issuance by court. A subpoena to compel production of an  original
record or document where a certified transcript or copy is admissible in
evidence, or to compel attendance of any person confined in a penitenti-
ary  or  jail,  shall  be  issued  by the court. Unless the court orders
otherwise, a motion for such subpoena shall be  made  on  at  least  one
day's  notice  to  the  person having custody of the record, document or
person confined. A subpoena to produce a prisoner so confined  shall  be
issued  by  a  judge  to whom a petition for habeas corpus could be made
under subdivision (b) of section seven thousand two of this chapter or a
judge of the court of claims, if the matter is pending before the  court
of claims, or a judge of the surrogate's court, if the matter is pending
before  the  surrogate's  court, or a judge or support magistrate of the
family court, if the matter is pending before the  family  court,  or  a
judge  of the New York city civil court, if the matter is pending before
the New York city civil court and it has been removed thereto  from  the
supreme court pursuant to subdivision (d) of section three hundred twen-
ty-five  of  this  chapter.    IN  THE  ABSENCE OF AN AUTHORIZATION BY A
PATIENT, A TRIAL SUBPOENA DUCES TECUM FOR THE PATIENT'S MEDICAL  RECORDS
MAY ONLY BE ISSUED BY A COURT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09303-02-1

S. 4586--A                          2

  S 2. Subdivision (a) of rule 3122 of the civil practice law and rules,
as  amended  by  chapter  575 of the laws of 2002, is amended to read as
follows:
  (a)  1.  Within  twenty  days of service of a notice or subpoena duces
tecum under rule 3120 or section 3121, the party or person to  whom  the
notice  or  subpoena  duces  tecum  is directed, if that party or person
objects to the disclosure, inspection  or  examination,  shall  serve  a
response which shall state with reasonable particularity the reasons for
each objection. If objection is made to part of an item or category, the
part  shall  be  specified.  [A  medical provider served with a subpoena
duces tecum requesting the production of  a  patient's  medical  records
pursuant  to this rule need not respond or object to the subpoena if the
subpoena is not accompanied by a written authorization by  the  patient.
Any  subpoena  served  upon  a  medical  provider requesting the medical
records of a patient shall state in conspicuous bold-faced type that the
records shall not be provided unless the subpoena is  accompanied  by  a
written  authorization  by  the  patient.]  The party seeking disclosure
under rule 3120 or section 3121 may move for an order under rule 3124 or
section 2308 with respect to any  objection  to,  or  other  failure  to
respond  to or permit inspection as requested by, the notice or subpoena
duces tecum, respectively, or any part thereof.
  2. A MEDICAL PROVIDER SERVED WITH A SUBPOENA DUCES TECUM, OTHER THAN A
TRIAL SUBPOENA ISSUED  BY  A  COURT,  REQUESTING  THE  PRODUCTION  OF  A
PATIENT'S  MEDICAL  RECORDS  PURSUANT  TO  THIS RULE NEED NOT RESPOND OR
OBJECT TO THE SUBPOENA IF THE SUBPOENA IS NOT ACCOMPANIED BY  A  WRITTEN
AUTHORIZATION BY THE PATIENT. ANY SUBPOENA SERVED UPON A MEDICAL PROVID-
ER  REQUESTING THE MEDICAL RECORDS OF A PATIENT SHALL STATE IN CONSPICU-
OUS BOLD-FACED TYPE THAT THE RECORDS SHALL NOT BE  PROVIDED  UNLESS  THE
SUBPOENA  IS  ACCOMPANIED  BY A WRITTEN AUTHORIZATION BY THE PATIENT, OR
THE COURT HAS ISSUED THE SUBPOENA OR OTHERWISE DIRECTED  THE  PRODUCTION
OF THE DOCUMENTS.
  S 3. This act shall take effect immediately.

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