Arons v. Jutkowitz

Decision Date05 December 2006
Docket Number2005-06762.
PartiesMANUEL ARONS et al., Appellants-Respondents, v. ROBERT JUTKOWITZ et al., Respondents-Appellants, et al., Defendant.
CourtNew York Supreme Court — Appellate Division
OPINION OF THE COURT

ADAMS, J.P.

The appeal in this action to recover damages for medical malpractice and wrongful death, etc., presents an issue of first impression regarding the interplay of the federal Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq. [hereinafter HIPAA]) and the defense bar's informal practice of privately interviewing plaintiffs' nonparty treating physicians after a note of issue has been filed. For the reasons stated below, we hold that the Supreme Court erred in granting the defendants' motion to direct the plaintiffs to execute HIPAA-compliant authorizations which permit defense counsel to conduct such ex parte interviews. We therefore modify the order accordingly.

The plaintiffs commenced this action in December of 1998. They allege, inter alia, that the defendants Dr. Robert Jutkowitz and Dr. Robert Fulop failed to timely diagnose and inform the plaintiffs' decedent, Phyllis Arons, that she suffered from hydrocephalus. An amended verified complaint was served in or about January of 1999, which added claims against, among others, the defendants Staten Island University Hospital (hereinafter the Hospital), William Gael, "John Doe" Mitnick, and "Richard Roe" Carlstrom. Discovery ensued and a note of issue was filed on or about February 6, 2003.

After the note of issue was filed, the plaintiffs declined to execute authorizations which would, pursuant to HIPAA, permit defense counsel to informally and privately interview nonparty treating physicians who rendered care to the decedent related to this action. Following the plaintiffs' refusal to execute such authorizations, Fulop moved to compel their production, and the defendants Jutkowitz, Gael, the Hospital, Mitnick, and Carlstrom joined in the motion. The Supreme Court granted the motion and directed the plaintiffs to provide HIPAA-compliant authorizations permitting such interviews.

It is well settled that a plaintiff who commences a medical malpractice action waives the physician-patient privilege with respect to those physical or mental conditions which he or she affirmatively places in issue in the lawsuit (see Koump v Smith, 25 NY2d 287, 294 [1969]; Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). As a result of the waiver, a defendant in such an action is entitled to disclosure regarding the relevant physical or mental condition at issue. In order to obtain this information, a defendant may therefore resort to the discovery devices provided by CPLR article 31 and the Uniform Rules for the New York State Trial Courts (hereinafter Uniform Rules) (see Stoller v Moo Young Jun, 118 AD2d 637 [1986]). For example, CPLR 3121 (a) contains a provision requiring a plaintiff to provide duly-executed and acknowledged written authorizations for the release of pertinent medical records (see Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456-457 [1983]; see also 22 NYCRR 202.17 [b] [2]). Moreover, upon issuance of a subpoena, a defendant may depose a plaintiff's nonparty treating physician pursuant to CPLR 3106 (b).

Notably, however, neither CPLR article 31 nor the Uniform Rules include a provision authorizing defense counsel to meet privately with a plaintiff's treating physician. Moreover, unlike the production of medical reports and hospital records, there is no statutory or regulatory authority which requires a plaintiff to execute authorizations permitting such ex parte interviews between their treating physicians and defense counsel. In the absence of such authority, or the plaintiff's consent, it has long been the rule that defense counsel are prohibited from conducting such private interviews during discovery (see Stoller v Moo Young Jun, supra; Brevetti v Roth, 114 AD2d 877 [1985]; Anker v Brodnitz, 98 Misc 2d 148, 154 [1979], affd 73 AD2d 589 [1979]; see also Feretich v Parsons Hosp., 88 AD2d 903 [1982]; Cwick v City of Rochester, 54 AD2d 1078 [1976]). These limits on disclosure are 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" (Feretich v Parsons Hosp., 88 AD2d at 904).

The rule prohibiting private meetings between defense counsel and plaintiffs' treating physicians was first articulated in Anker v Brodnitz (supra). Subsequent cases addressed the issue of whether a treating physician's testimony at trial should be precluded on the ground that defense counsel had private discussions with him or her after the note of issue was filed. This Court has held that the treating physician's testimony should not be precluded on such basis (see Levande v Dines, 153 AD2d 671 [1989]; Zimmerman v Jamaica Hosp., 143 AD2d 86 [1988]; see also Luce v State of New York, 266 AD2d 877 [1999]; Fraylich v Maimonides Hosp., 251 AD2d 251 [1998]; Tiborsky v Martorella, 188 AD2d 795 [1992]), and since those rulings, it appears that the defense bar has adopted the practice of regularly conducting such post-note of issue ex parte meetings (see Thomas A. Moore and Matthew Gaier, Medical Malpractice: Ex-Parte Interviews With Treating Physicians, NYLJ, July 6, 2004, at 3, col 1).

However, we did not declare that defense counsel have a right to such informal, post-note of issue interviews, nor did we require plaintiffs to consent to them. Rather, we merely held, under the circumstances, that the treating physician's unique and highly relevant testimony would not be precluded (see Levande v Dines, supra; Zimmerman v Jamaica Hosp., supra). "This is in keeping with the general rule that no party has a proprietary interest in any evidence, and that absent unfair prejudice each party has the right to marshall, and the jury has the right to hear, the testimony that best supports each position" (Tiborsky v Martorella, supra at 797). The federal government's enactment of HIPAA does not alter this precedent despite the practical obstacles it now imposes for defense counsel who seek such private interviews (see 45 CFR 164.512 [e]; Northwestern Mem. Hosp. v Ashcroft, 362 F3d 923 [2004]).

In 1996, Congress enacted HIPAA in order to further the federal goals of increased access to health care and to improve the efficiency and effectiveness of the health care system (see Pub L No. 104-191, 110 US Stat 1936). During the legislative process, individual patient privacy became an increasing concern due to innovations in technology with respect to information sharing (see Tamela J. White and Charlotte A. Hoffman, The Privacy Standards Under the Health Insurance Portability and Accountability Act: A Practical Guide to Promote Order and Avoid Potential Chaos, 106 W Va L Rev 709, 712-713 [2004]). To address these concerns about patient privacy, Congress delegated to the Secretary of the Department of Health and Human Services (hereinafter the DHHS) the task of adopting national standards "to ensure the integrity and confidentiality of the information" (42 USC § 1320d-2 [d] [2] [A]; Standards for Privacy of Individually Identifiable Health Information, 65 Fed Reg 82462 [2000]).

Pursuant to this congressional mandate, the DHHS implemented its privacy rule in 2003 (see 45 CFR parts 160, 164). The privacy rule controls the "[u]ses and disclosures of protected health information" by "covered entit[ies]" (see 45 CFR 164.502). Covered entities, including health care providers such as treating physicians, must develop policies, implement procedures, and maintain compliance with the privacy rule to ensure against unauthorized disclosure of protected health information (see 45 CFR 164.530). Without such compliance, they face penalties in the form of fines and even imprisonment (see 42 USC §§ 1320d-5, 1320d-6).

The privacy rule authorizes a covered entity to disclose protected health information under an enumerated set of circumstances (see 45 CFR 164.502 [a] [1]). As relevant here, disclosure is permitted pursuant to and in compliance with a valid authorization as executed by the patient (see 45 CFR 164.502 [a] [1] [iv]; 164.508). However, the patient's authorization is not necessary if the covered entity is disclosing protected health information in response to a court order, a subpoena, a discovery request, or "other lawful process" (see 45 CFR 164.512 [e] [1] [i], [ii]). If a subpoena or discovery request is not accompanied by an order of the court, the covered entity must receive "satisfactory assurances" (45 CFR 164.512 [e] [1] [iii]) from the party seeking the information that (1) reasonable efforts have been made to ensure that the individual who is the subject of the information has been notified of the request or, (2) reasonable efforts have been made to secure a qualified protective order for the information (see 45 CFR 164.512 [e]). If these assurances are not given, the health care entity must itself make reasonable efforts to provide notice or to seek a qualified protective order (see id.).

In light of these provisions of the privacy rule, defense counsel have faced a practical dilemma in attempting to privately speak with plaintiffs' nonparty treating physicians...

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4 cases
  • Arons v. Jutkowitz
    • United States
    • New York Court of Appeals Court of Appeals
    • November 27, 2007
    ...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 sever......
  • Maillaro v. New York Presbyterian Hosp.
    • United States
    • U.S. District Court — District of New Jersey
    • October 12, 2011
  • Arons v. Jutkowitz
    • United States
    • New York Court of Appeals Court of Appeals
    • September 6, 2007
    ...v. Robert JUTKOWITZ et al., Appellants, et al., Defendant. Court of Appeals of New York. September 6, 2007. Reported before, 37 A.D.3d 94, 825 N.Y.S.2d 738. Motion by New York City Health and Hospitals Corporation for leave to file a brief amicus curiae on the appeal herein granted and the ......
  • Arons v. Jutkowitz
    • United States
    • New York Court of Appeals Court of Appeals
    • October 11, 2007
    ...v. Robert JUTKOWITZ et al., Appellants, et al., Defendant. Court of Appeals of New York. October 11, 2007. Reported below, 37 A.D.3d 94, 825 N.Y.S.2d 738. Motion by New York State Trial Lawyers' Association for leave to file a brief amicus curiae on the appeal herein granted and the propose......

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