senate Bill S1046

2013-2014 Legislative Session

Enacts the "patient privacy protection act"

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Archive: Last Bill Status - In Committee


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to judiciary
Jan 09, 2013 referred to judiciary

Co-Sponsors

S1046 - Bill Details

See Assembly Version of this Bill:
A2365
Current Committee:
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd ยง3102, CPLR
Versions Introduced in Previous Legislative Sessions:
2011-2012: S3296A, A694A
2009-2010: S1514, A1254A

S1046 - Bill Texts

view summary

Enacts the "patient privacy protection act"; prohibits interviews of other party's treating physicians or health care providers in personal injury, medical, dental, or podiatric malpractice or wrongful death actions.

view sponsor memo
BILL NUMBER:S1046

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 plaintiff's nonparty
treating physician pursuant to CPLR 31 06(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 interview an adverse party's
treating physician privately where the adverse party has
affirmatively placed his or her medical condition in controversy,
although HIPPA imposes certain procedural prerequisites. This
holding would now permit defense counsel to obtain court ordered
HIPPA 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.8691B
2009-2010: S.1514
2011-2012: S.3296A/A.694A

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.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1046

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- 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  enact-
  ing the "patient privacy protection act"

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

  Section 1. Short title.  This act shall be known and may be  cited  as
the "patient privacy protection act".
  S  2.   Section 3102 of the civil practice law and rules is amended by
adding a new subdivision (c-1) to read as follows:
  (C-1) EX-PARTE INTERVIEWS. IN ANY ACTION  INVOLVING  PERSONAL  INJURY,
MEDICAL, DENTAL OR PODIATRIC MALPRACTICE, OR WRONGFUL DEATH, NO PARTY OR
ANYONE  ACTING  ON  BEHALF  OF A PARTY MAY EITHER DIRECTLY OR INDIRECTLY
CONDUCT EX-PARTE INTERVIEWS WITH THE TREATING PHYSICIANS OR OTHER HEALTH
CARE PROVIDERS OF ANY OTHER PARTY.   NOTHING IN THIS  SUBDIVISION  SHALL
PROHIBIT AN ATTORNEY OR THE AGENT OR EMPLOYEE OF AN ATTORNEY WHO REPRES-
ENTS  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  FROM CONDUCTING EX-PARTE CONVERSATIONS WITH A TREATING PHYSICIAN
OR OTHER HEALTH CARE PROVIDER OF THE PATIENT.
  S 3. This act shall take effect on the thirtieth day  after  it  shall
have  become  a  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  two  of  this
act which occurred prior to such effective date.


 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03820-01-3

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