Arons v. Jutkowitz, 147.

CourtNew York Court of Appeals
Writing for the CourtRead
Citation850 N.Y.S.2d 345,9 N.Y.3d 393,880 N.E.2d 831
PartiesManuel ARONS, Individually and as Executor of Phyllis Arons, Deceased, Respondent, v. Robert JUTKOWITZ et al., Appellants, et al., Defendant. Tanya Webb, Respondent, v. New York Methodist Hospital et al., Appellants. Annette J. Kish, as Administrator. De Bonis Non of the Estate of James J. Jerge, Deceased, Respondent, v. David H. Graham, M.D., et al., Appellants.
Decision Date27 November 2007
Docket Number148.,147.,153.
880 N.E.2d 831
9 N.Y.3d 393
850 N.Y.S.2d 345
Manuel ARONS, Individually and as Executor of Phyllis Arons, Deceased, Respondent,
v.
Robert JUTKOWITZ et al., Appellants, et al., Defendant.
Tanya Webb, Respondent,
v.
New York Methodist Hospital et al., Appellants.
Annette J. Kish, as Administrator. De Bonis Non of the Estate of James J. Jerge, Deceased, Respondent,
v.
David H. Graham, M.D., et al., Appellants.
147.
148.
153.
Court of Appeals of New York.
November 27, 2007.

[880 N.E.2d 832]

Amabile & Erman, P.C., Staten Island (Flutra Limani of counsel), for Robert Jutkowitz, appellant in the above-entitled action.

Mauro Goldberg & Lilling LLP, Great Neck (Barbara DeCrow Goldberg of counsel), and Vaslas Lepowsky Hauss Danke LLP for Robert Fulop, appellant in the first above-entitled action.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Michael J. Gudzy, Timothy J. Sheehan and Richard E. Lerner of counsel), for William Gael and others, appellants in the first aboveentitled action.

Philip J. Dinhofer, LLC, Rockville Centre (Philip J. Dinhofer of counsel), for respondent in the first above-entitled action.

Michael A. Cardozo, Corporation Counsel, New York City (John Hogrogian, Diane Conyers and Suzanne K. Colt of counsel), for New York City Health and Hospitals Corporation, amicus curiae in the first above-entitled action.

Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York City (Steven C. Mandell of counsel), for appellants in the second above-entitled action.

Oshman & Mirisola, LLP, New York City (David L. Kremen of counsel), for respondent in the second above-entitled action.

Mauro Goldberg &Lilling LLP, Great Neck (Barbara DeCrow Goldberg of counsel), and Damon & Morey LLP for appellants in the third above-entitled action.

Hamsher & Valentine, Buffalo (Richard P. Valentine of counsel), and Hancock & Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for respondent in the third above-entitled action.

Kramer, Dillof, Livingston & Moore, New York City (Matthew Gaier and Brian Isaac of counsel), for New York State Trial Lawyers' Association, amicus curiae in the first, second and third above-entitled actions.

[850 N.Y.S.2d 401]

OPINION OF THE COURT

READ, J.


These appeals call upon us to decide whether an attorney may interview an adverse party's treating physician privately

850 N.Y.S.2d 402

when the adverse party has affirmatively placed his or her medical condition in controversy. We conclude that an attorney

880 N.E.2d 833

may do so, although the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Pub. L. 104.491, 110 U.S. Stat. 1936 [1996] [codified as amended in scattered sections of titles 18, 26, 29 and 42 of the United States Code]) through its Privacy Rule (45 CFR parts 160, 164) imposes procedural prerequisites unique to the informal discovery of health care professionals.

I.

A. Arons v. Jutkowitz

In Arons, plaintiff husband, individually and as executor of his late wife's estate, brought a medical malpractice and wrongful death action against several physicians, other medical professionals and two hospitals. He alleged that two of the physician defendants failed to tell decedent that her MRI revealed hydrocephalus, thus delaying proper medical care for 14 months as her health deteriorated. Decedent, who was hospitalized repeatedly for unavailing treatments in the roughly six months after her diagnosis, lapsed into a coma and died some weeks later.

Once plaintiff filed a note of issue, one of the physician defendants requested HIPAA-compliant authorizations so that his attorneys might seek to interview decedent's treating physician. Plaintiff refused, prompting defendants to ask Supreme Court for an order pursuant to HIPAA regulations (45 CFR 164.512[e][1][i]; 164.508) "directing plaintiff to provide authorizations permitting defense counsel to speak with certain physicians who rendered care to ... plaintiff related to claims being made in [the] action, if the physicians voluntarily agree to such interviews."

Supreme Court granted the motion. The court reasoned that by commencing the medical malpractice action, plaintiff put his late wife's medical condition into play, thus waiving her physician-patient privilege; that defendants were permitted to interview a plaintiffs treating physicians, "but only after the note of issue [had] been filed"; and, citing several lower court decisions, that "HIPAA regulations require authorizations from the plaintiff in order for the defendants to conduct post-discovery interviews with treating physicians" (2005 N.Y. Slip Op 30130[U], *3, 2005 WL 5955233). Consequently, Supreme Court directed plaintiff to provide authorizations to defense counsel within seven days, subject to several conditions; specifically,

850 N.Y.S.2d 403

"the authorization[s] must, on [their] face state in BOLD letters that the purpose of the interview is to assist the defendants in defense of a lawsuit and it is not at the request of the plaintiff. The authorization[s] must contain the name and address of the person to whom the health care provider may give an interview if he or she wishes and must identify the persons or entities the interviewer is representing and must conform in all respects to 45 C.F.R. § 164.508(c). The authorizations may not be combined with a subpoena and there must be a separate authorization for each interview.

"Within 72 hours after the interview, the defendant must provide the plaintiff with any and all written statements, materials or notations and any document obtained from the interviewed health care provider, as well as copies of any memoranda, notes, audio or video recordings of any oral statements made by the health care provider. The defendant's counsel need not disclose their conclusions, impressions or analysis of any of the statements." (Id.)

Plaintiff appealed, and the Appellate Division, Second Department, reversed. The

880 N.E.2d 834

court opined that although plaintiff had waived the physician-patient privilege by bringing the lawsuit, defendants were entitled only to disclosure via the discovery devices enumerated in CPLR article 31 and the Uniform Rules for the New York State Trial Courts, which do not mention ex parte interviews, or mandate that a plaintiff execute authorizations permitting them. Further, "[i]n the absence of explicit authority in article 31 or the Uniform Rules or plaintiffs consent, defense counsel had long been prohibited from privately interviewing a plaintiff's treating physicians during discovery a "limit[] on disclosure ... imposed not because of the physician-patient privilege, which is generally waived by bringing a malpractice action, but by the very design of the specific disclosure devices available in CPLR article 31" (Arons v. Jutkowitz, 37 A.D.3d 94, 97, 825 N.Y.S.2d 738 [2d Dept.2006] [internal quotation marks omitted]).

Next, the court conceded that while it had previously decided that a treating physician's testimony could not be precluded at trial on the basis of ex parte interviews conducted after the filing of the note of issue, those decisions neither "declare[d] that defense counsel [had] a right to such informal, post-note of issue

850 N.Y.S.2d 404

interviews," nor "require[d] plaintiffs to consent to them" (id.). Further, although HIPAA did not alter state law regarding these private interviews, it had created a "practical dilemma" for defense counsel seeking to conduct them because physicians refused to talk with them absent a HIPAA-compliant authorization or court order (id. at 99, 825 N.Y.S.2d 738).

Finally, the court remarked that after the filing of a note of issue, an order for additional pretrial discovery called for the requesting party to demonstrate "unusual or unanticipated circumstances" (id. at 100, 825 N.Y.S.2d 738, quoting 22 NYCRR 202.21[d] ); and that, in this case, the note of issue had been filed before HIPAA's privacy regulations became effective. "[I]n light of the unsettled nature of the law prior to [its] decision," the Appellate Division therefore modified Supreme Court's order by "deny[ing] ... defendants' motion with leave to move pursuant to 22 NYCRR 202.21(d) for permission to conduct additional pretrial discovery relating to ... decedent's treating physicians as limited by article 31" (id. at 101, 825 N.Y.S.2d 738 [emphasis added]). The Appellate Division subsequently granted defendants' motion for leave to appeal, asking us whether its opinion and order were properly made.

B. Webb v. New York Methodist Hospital

In this medical malpractice action, plaintiff alleged that she suffered constant nausea, intractable vomiting and malnutrition as a result of a botched gastric stapling operation. Plaintiff, who weighed 450 pounds at the time of her surgery, lost 200 pounds afterwards.

Once the note of issue was filed, defendant physician and defendant hospital sought HIPAA-compliant authorizations for ex parte interviews with the gastroenterologist who treated plaintiff after her weight-loss operation, and the surgeon who operated on her to reverse the procedure. When plaintiff refused to supply authorizations, defendants moved to compel her to do so.

Supreme Court granted the motion and directed plaintiff to furnish authorizations for the interviews, subject to conditions that he had worked out in earlier litigation where the same issue had arisen. As was the case in Arons, these conditions included a direction for defense counsel to hand over to his adversary copies of all written statements and notations obtained from the physicians during the private interviews,

880 N.E.2d 835

as well as any audio or video recordings or transcripts, and interview

850 N.Y.S.2d 405

memoranda or notes (excluding the attorneys' observations, impressions or analyses).

The Appellate Division, Second Department, reversed Supreme Court's order for the reasons stated in Arons, and denied defendants' motions "without prejudice to making...

To continue reading

Request your trial
109 practice notes
  • Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., No. 18904.
    • United States
    • Supreme Court of Connecticut
    • November 11, 2014
    ...court pretrial practices must be HIPAA compliant; see, e.g., Law v. Zuckerman, 307 F.Supp.2d 705, 710–11 (D.Md.2004) ; Arons v. Jutkowitz, 9 N.Y.3d 393, 415, 880 N.E.2d 831, 850 N.Y.S.2d 345 (2007) ; a requirement that extends to responses to subpoenas. See State v. La Cava, Superior Court,......
  • Davis v. S. Nassau Cmtys. Hosp., No. 163
    • United States
    • New York Court of Appeals
    • December 16, 2015
    ...to the injured party of the patient's medical records and communications 46 N.E.3d 634 with the physician (see Arons v. Jutkowitz, 9 N.Y.3d 393, 409, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007] ; Dillenbeck v. Hess, 73 N.Y.2d 278, 287–288, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989] ). An injured ......
  • Flores v. Infrastructure Repair Serv., LLC
    • United States
    • United States State Supreme Court (New York)
    • September 25, 2015
    ...or unanticipated circumstances” that developed after the note of issue and that warranted additional disclosure. Arons v. Jutkowitz, 9 N.Y.3d 393, 411, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007) ; Desario v. SL Green Mgt. LLC, 118 A.D.3d 520, 987 N.Y.S.2d 151 (1st Dep't 2014) ; Madison v. Sama......
  • Davis v. S. Nassau Cmtys. Hosp.
    • United States
    • New York Court of Appeals
    • December 16, 2015
    ...of the patient's medical 26 N.Y.3d 593records and communications 46 N.E.3d 63426 N.Y.S.3d 251with the physician (see Arons v. Jutkowitz, 9 N.Y.3d 393, 409, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007] ; Dillenbeck v. Hess, 73 N.Y.2d 278, 287–288, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989] ). An in......
  • Request a trial to view additional results
109 cases
  • Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., No. 18904.
    • United States
    • Supreme Court of Connecticut
    • November 11, 2014
    ...court pretrial practices must be HIPAA compliant; see, e.g., Law v. Zuckerman, 307 F.Supp.2d 705, 710–11 (D.Md.2004) ; Arons v. Jutkowitz, 9 N.Y.3d 393, 415, 880 N.E.2d 831, 850 N.Y.S.2d 345 (2007) ; a requirement that extends to responses to subpoenas. See State v. La Cava, Superior Court,......
  • Davis v. S. Nassau Cmtys. Hosp., No. 163
    • United States
    • New York Court of Appeals
    • December 16, 2015
    ...to the injured party of the patient's medical records and communications 46 N.E.3d 634 with the physician (see Arons v. Jutkowitz, 9 N.Y.3d 393, 409, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007] ; Dillenbeck v. Hess, 73 N.Y.2d 278, 287–288, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989] ). An injured ......
  • Flores v. Infrastructure Repair Serv., LLC
    • United States
    • United States State Supreme Court (New York)
    • September 25, 2015
    ...or unanticipated circumstances” that developed after the note of issue and that warranted additional disclosure. Arons v. Jutkowitz, 9 N.Y.3d 393, 411, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007) ; Desario v. SL Green Mgt. LLC, 118 A.D.3d 520, 987 N.Y.S.2d 151 (1st Dep't 2014) ; Madison v. Sama......
  • Davis v. S. Nassau Cmtys. Hosp.
    • United States
    • New York Court of Appeals
    • December 16, 2015
    ...of the patient's medical 26 N.Y.3d 593records and communications 46 N.E.3d 63426 N.Y.S.3d 251with the physician (see Arons v. Jutkowitz, 9 N.Y.3d 393, 409, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007] ; Dillenbeck v. Hess, 73 N.Y.2d 278, 287–288, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989] ). An in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT