Senate Bill S4586

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

download bill text pdf

Archive: Last Bill Status Via A7465 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

Date of Action	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
May 26, 2011	amend and recommit to judiciary
Apr 13, 2011	referred to judiciary

Votes

- Jun 16, 2011 - Floor Vote
  A7465
  
  Aye
  
  60
  
  Nay
  
  2
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Floor Vote: Jun 16, 2011
      
      aye (60)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Avella
      
      Ball
      
      Bonacic
      
      Breslin
      
      Carlucci
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Espaillat
      
      Farley
      
      Flanagan
      
      Fuschillo
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Grisanti
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Kennedy
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Libous
      
      Little
      
      Marcellino
      
      Martins
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      O'Mara
      
      Oppenheimer
      
      Parker
      
      Peralta
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Valesky
      
      Young
      
      Zeldin
      
      nay (2)
      
      Duane
      
      Perkins
  Jun 1, 2011 - Judiciary Committee Vote
  S4586
  
  Aye
  
  18
  
  Nay
  
  2
  
  Aye with Reservations
  
  2
  
  Absent
  
  0
  
  Excused
  
  1
  
  Abstained
  
  0
  - - Judiciary Committee Vote: Jun 1, 2011
      
      aye (18)
      
      Bonacic
      
      Breslin
      
      Dilan
      
      Espaillat
      
      Flanagan
      
      Fuschillo
      
      Gianaris
      
      Hassell-Thompson
      
      LaValle
      
      Lanza
      
      Little
      
      Nozzolio
      
      O'Mara
      
      Ranzenhofer
      
      Saland
      
      Squadron
      
      Stavisky
      
      Zeldin
      
      nay (2)
      
      DeFrancisco
      
      Perkins
      
      aye wr (2)
      
      Krueger
      
      Serrano
      
      excused (1)
      
      Adams

Bill Amendments

Original

A (Active)

2011-S4586 - Details

See Assembly Version of this Bill:: A7465
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §2302, R3122, CPLR

2011-S4586 - 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.

2011-S4586 - 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)

2011-S4586 - Bill 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.

2011-S4586A (ACTIVE) - Details

See Assembly Version of this Bill:: A7465
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §2302, R3122, CPLR

2011-S4586A (ACTIVE) - 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.

2011-S4586A (ACTIVE) - 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]

2011-S4586A (ACTIVE) - Bill 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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Senate Bill S4586

Signed By Governor

Sponsored By

Archive: Last Bill Status Via A7465 - Signed by Governor

Actions

Votes

Jun 16, 2011 - Floor Vote

Floor Vote: Jun 16, 2011

Jun 1, 2011 - Judiciary Committee Vote

Judiciary Committee Vote: Jun 1, 2011

Bill Amendments

2011-S4586 - Details

2011-S4586 - Summary

2011-S4586 - Sponsor Memo

2011-S4586 - Bill Text download pdf

2011-S4586A (ACTIVE) - Details

2011-S4586A (ACTIVE) - Summary

2011-S4586A (ACTIVE) - Sponsor Memo

2011-S4586A (ACTIVE) - Bill Text download pdf

Comments

Do you support this bill?

Get Status Alerts for 2011-S4586

Senate Bill S4586

Signed By Governor

Share this bill

Sponsored By

John J. Bonacic

Archive: Last Bill Status Via A7465 - Signed by Governor

Actions

Votes

Bill Amendments

2011-S4586 - Details

2011-S4586 - Summary

2011-S4586 - Sponsor Memo

2011-S4586 - Bill Text download pdf

2011-S4586A (ACTIVE) - Details

2011-S4586A (ACTIVE) - Summary

2011-S4586A (ACTIVE) - Sponsor Memo

2011-S4586A (ACTIVE) - Bill Text download pdf

Comments