Sims v. Reyes

Decision Date07 May 2021
Docket NumberCA 20-00266,1240
Parties Nicholas SIMS, Plaintiff-Appellant, v. Samuel A. REYES, M.D., et al., Defendants, and Seton Imaging, Defendant-Respondent. (Appeal No. 1.)
CourtNew York Supreme Court — Appellate Division

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (MEGHANN N. ROEHL OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND BANNISTER, JJ.

OPINION AND ORDER

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Opinion by Troutman, J.:

In this medical malpractice action, a dispute arose concerning the specific wording of an authorization provided by plaintiff as required by Arons v. Jutkowitz, 9 N.Y.3d 393, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007). Supreme Court directed plaintiff to provide authorizations containing certain language, and we conclude that the court's ruling did not constitute an abuse of discretion. Accordingly, the order should be affirmed.

Plaintiff commenced this medical malpractice action to recover damages for injuries that he sustained as a result of a failure to diagnose a tumor. Seton Imaging (defendant) demanded authorizations compliant with the Health Insurance Portability and Accountability Act of 1996 ([HIPAA] Pub L 104-191, 110 US Stat 1936) allowing plaintiff's treating physicians to speak with defendant's attorney. In response, plaintiff provided authorizations that included the following language:

"***READ BELOW AND PAGE 2 FOR IMPORTANT INFORMATION***
The attorneys for the defendants in this lawsuit have indicated that they intend to contact you, and will attempt to meet with you to discuss the medical treatment you have provided, and perhaps other issues that relate to a lawsuit I commenced. Although I am required to provide these defense lawyers with a written authorization permitting them to contact you, the law does not obligate you in any way to meet with them or talk to them. That decision is entirely yours. If you decide to meet with their lawyers, I would ask that you let me know, because I would like the opportunity to be present or have my attorneys present."

The foregoing language (see Charlap v. Khan , 41 Misc. 3d 1070, 1072, 972 N.Y.S.2d 871 [Sup. Ct., Erie County 2013, Curran, J.] ) was printed in bold and in a typeface larger than that used throughout the rest of the authorization.

Defendant objected to that language, asserting a right to interview plaintiff's treating physicians privately. Plaintiff refused to provide revised authorizations. Defendant offered, as a compromise, to accept revised authorizations that included the following language:

"the purpose of the requested interview with the physician is solely to assist defense counsel at trial. The physician is not obligated to speak with defense counsel prior to trial. The interview is voluntary."

Unable to reach a compromise with plaintiff, defendant moved, inter alia, to compel plaintiff to provide revised authorizations. The court granted the motion in part, directing plaintiff, as relevant here, to provide revised HIPAA-compliant authorizations containing defendant's proposed language, unemphasized and in the same size font as the rest of the authorization. Plaintiff appeals.

The CPLR provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" ( CPLR 3101 [a] ). Although the statute establishes a right to broad discovery, that right is not unlimited (see Forman v. Henkin , 30 N.Y.3d 656, 661-662, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ). The Court of Appeals has recognized the importance of protecting parties from " ‘unnecessarily onerous application of the discovery statutes " ( id. at 662, 70 N.Y.S.3d 157, 93 N.E.3d 882, quoting Kavanagh v. Ogden Allied Maintenance Corp. , 92 N.Y.2d 952, 954, 683 N.Y.S.2d 156, 705 N.E.2d 1197 [1998] ). Relatedly, the Court of Appeals has refused to limit parties to the formal discovery devices enumerated in CPLR article 31 (see Arons , 9 N.Y.3d at 409, 850 N.Y.S.2d 345, 880 N.E.2d 831 ), identifying ex parte interviews of fact witnesses as "informal discovery of information that [might] serve both the litigants and the entire justice system by uncovering relevant facts, thus promoting the expeditious resolution of disputes" ( Niesig v. Team I , 76 N.Y.2d 363, 372, 559 N.Y.S.2d 493, 558 N.E.2d 1030 [1990] ; see Arons , 9 N.Y.3d at 407, 850 N.Y.S.2d 345, 880 N.E.2d 831 ). Informal discovery may often be more efficient and economical for nonparties, too. For example, in the absence of informal discovery, " [i]nstead of communicating with an attorney during a 10-minute telephone call, a physician could be required to attend a four-hour deposition or to provide a time-consuming response to detailed and lengthy interrogatories’ " ( Arons , 9 N.Y.3d at 409, 850 N.Y.S.2d 345, 880 N.E.2d 831, quoting Kish v. Graham , 40 A.D.3d 118, 129, 833 N.Y.S.2d 313 [4th Dept. 2007, Pine, J., dissenting], revd 9 N.Y.3d 393, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007] ).

Physicians, of course, cannot freely discuss their patients’ medical histories. Since the promulgation of HIPAA's Privacy Rule (45 CFR parts 160, 164), physicians are forbidden by federal law from disclosing protected health information (see Arons , 9 N.Y.3d at 412-413, 850 N.Y.S.2d 345, 880 N.E.2d 831 ). Thus, in order to facilitate the continued practice of informal discovery with respect to nonparty physicians, the Court of Appeals created a procedural framework for parties to conduct such discovery without running afoul of the Privacy Rule (see id. at 409-411, 850 N.Y.S.2d 345, 880 N.E.2d 831 ; McCarter v. Woods , 106 A.D.3d 1540, 1541-1542, 964 N.Y.S.2d 825 [4th Dept. 2013] ). Under that framework, when a plaintiff has affirmatively put his or her medical condition in controversy, he or she must, upon the defendant's request, furnish HIPAA-compliant authorizations permitting plaintiff's treating physicians to speak to defendant's attorney (see Arons , 9 N.Y.3d at 415, 850 N.Y.S.2d 345, 880 N.E.2d 831 ). The furnishing of such an authorization to the defense is not designed to further the rights of either party to the litigation;1 it is merely a "procedural prerequisite" of an interview with the nonparty physician ( id. at 402, 850 N.Y.S.2d 345, 880 N.E.2d 831 ), who is free to decline the interview (see id. at 416, 850 N.Y.S.2d 345, 880 N.E.2d 831 ).

Since Arons , few disputes concerning the specific wording of an authorization have made their way to the appellate courts. The relative dearth of appellate litigation may be due in large part to the Office of Court Administration's adoption of a standard form, titled "Authorization to Permit Interview of Treating Physician by Defense Counsel" (https://www.nycourts.gov/forms/hipaa.shtml; see Akalski v. Counsell , 29 Misc. 3d 936, 939, 908 N.Y.S.2d 537 [Sup. Ct., Westchester County 2010], op amended and superseded ––– Misc. 3d ––––, 2010 WL 4412335 [Oct. 18, 2010] ), which would seem to offer a straightforward way for parties to meet this simple procedural prerequisite. Indeed, the last time a dispute involving the precise wording of an Arons authorization made its way to this Court, we concluded that the court properly directed the parties to use that very form (see Grieco v. Kaleida Health , 82 A.D.3d 1671, 1672, 919 N.Y.S.2d 443 [4th Dept. 2011] ).

Of course, parties are not required to use this readily available form, nor is the court required to insist upon its use, although that may lead to disputes over the precise wording of the authorizations. When such a dispute arises, its resolution falls comfortably within the court's " ‘broad discretion to control discovery,’ " and, unless there is a clear abuse of that discretion, we will not disturb the court's ruling ( Voss v. Duchmann , 129 A.D.3d 1697, 1698, 12 N.Y.S.3d 428 [4th Dept. 2015] ; see Forman , 30 N.Y.3d at 662, 70 N.Y.S.3d 157, 93 N.E.3d 882 ; Lisa I. v. Manikas , 183 A.D.3d 1096, 1097, 123 N.Y.S.3d 734 [3d Dept. 2020] ; Hann v. Black , 96 A.D.3d 1503, 1504, 946 N.Y.S.2d 722 [4th Dept. 2012] ). Here, the wording that was approved by the court is identical to the wording that previously met with the approval of the Second Department in Porcelli v. Northern Westchester Hosp. Ctr., 65 A.D.3d 176, 178, 882 N.Y.S.2d 130 (2d Dept. 2009), it is similar to the language contained in the standard form, and there is no dispute that it is consistent with the applicable law. Thus, we cannot say that the court clearly abused its broad discretion in granting that part of the motion seeking to compel plaintiff to provide revised authorizations (see Voss , 129 A.D.3d at 1698, 12 N.Y.S.3d 428 ; Grieco , 82 A.D.3d at 1672, 919 N.Y.S.2d 443 ).

All concur except Bannister, J., who dissents and votes to modify in accordance with the following opinion:

I respectfully dissent. In my view, the language at issue in plaintiff's HIPAA-compliant authorizations, which requested that his treating physicians inform plaintiff if they chose to speak with the attorney representing Seton Imaging (defendant), was in no way improper, illegal, or misleading. Therefore, I conclude that Supreme Court abused its discretion in granting that part of defendant's motion seeking to compel plaintiff to provide revised authorizations.

The contested wording in the authorization advises the physicians that "[i]f you decide to meet with [defendant's] lawyers, I would ask that you let me know, because I would like the opportunity to be present or have my attorneys present." Defendant objected to that language, arguing that it interfered with its right to interview plaintiff's treating physicians privately. My colleagues and I agree that defendant does not have a right to a private interview with plaintiff's treating physicians. To the extent that defendant relies on ...

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