NY Court of Appeals Allows Defendants to Privately Question Plaintiffs’ Doctors

In a major decision today from New York’s highest court, defendants have been granted permission to privately interview the treating physicians of personal injury plaintiffs after the close of discovery. In permitting this, the Court appears to have cast aside the privacy provisions of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The decision in Arons v. Jutkowitz is expected to open a small floodgate of attempts by insurance companies and defense lawyers to privately approach treating physicians without the knowledge or permission of the patients and take statements without their counsel or any court reporter being present.

The conservative Judge Read, writing for the majority, concluded that plaintiffs can be forced to sign HIPAA compliant authorizations to allow the interviews. Because this will be done outside the formal deposition process, however, the usual safeguards regarding relevance and accuracy are no longer in place.

So how does the court reconcile the privacy that HIPAA affords with its determination to allow private interviews? While some medical conditions are certainly waived by bringing suit, others may not be. The solution, according to Justice Read, is to simply trust the defense lawyers. Justice Read wrote with regard to the HIPAA issue:

“it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically”

So that’s it. Congress’s attempt to safeguard medical privacy by statute has now been overruled by New York’s Court of Appeals. If a passenger in a car accident brings lawsuit regarding a broken hip, for instance, the privacy of the person’s unrelated drug, pregnancy or psychiatric history is no longer protected by federal statute. It’s only protected by trusting the lawyer defending the case for the insurance company. HIPAA is gone.

The dangers and risks of this decision will now play out over the next several years, as doctors are informally interviewed and then confronted with statements at trial that they claim were never made or were taken out of context. It will also come up when doctors are interviewed and questioned about facts that may be wholly unrelated to the injuries in question and still protected by HIPAA.

This is a bad decision that will inevitably result in a mountain of litigation. And given the apparent challenge and conflict to the federally mandated HIPAA, I am left to wonder if an appeal to the US Supreme Court will be attempted.

Justice Piggott, writing in dissent about the judicial activism of the majority, addressed the procedural discovery process we have in New York:

Our holding today grants defense counsel the unprecedented ability to compel a plaintiff, who has placed his or her mental or physical condition in controversy, to execute authorizations allowing defense counsel to speak to his or her treating physicians outside the formal discovery process and without the plaintiff being present…it is “beyond cavil” that “neither the machinery in CPLR Article 31 nor the applicable Uniform Rules [for New York State Trial Courts] provide for the disclosure of this nature.”

(Eric Turkewitz is a personal injury attorney in New York)
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Addendum:

Links to this post

a divisive decision — arons v. jutkowitz & kish v. graham
most of you have already trudged through the new york court of appeals’ 32-page decision in arons v. jutkowitz and kish v. graham. for those who didn’t, the court held that defense counsel may conduct an ex parte interview with aa

posted by Matt Lerner @ December 09, 2007 5:09 PM

a divisive decision — arons v. jutkowitz & kish v. graham
most of you have already trudged through the new york court of appeals’ 32-page decision in arons v. jutkowitz and kish v. graham. for those who didn’t, the court held that defense counsel may conduct an ex parte interview with aa

posted by Matthew Lerner @ December 05, 2007 9:46 PM

New York, New York! (Arons allows ex parte interviews of treaters)
We love it when courts agree with us. (And don’t say, “Because it happens so rarely.”) We posted in February that HIPAA does not preempt state laws that allow defense counsel to speak informally (and without plaintiff’s counsel present)

posted by Beck/Herrmann @ December 04, 2007 9:16 AM

hipaa goes dark in new york
well, broadway is still dark this week, and it seems the judges of the new york court of appeals don’t want the courts of the empire state to do much work either — at least not the sort of work that entails thinking hard about whether

posted by David Harlow @ November 28, 2007 9:27 AM

“NY Court of Appeals Allows Defendants to Privately Question
“NY Court of Appeals Allows Defendants to Privately Question Plaintiff’s Doctors”: Eric Turkewitz has this post at the “New York Personal Injury Law Blog.” You can access today’s ruling of the New York State Court of Appeals — that

posted by @ November 27, 2007 2:40 PM

hipaa release scare tactics by settlement professionals have no
one structured settlement professional has been advertising that it has language to put into a hipaa release that purports to limit the distribution of a plaintiff’s medical records in such a way to prevent the defendant from obtain
posted by structuredsettlements @ January 14, 2008 1:36 AM

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6 Responses Leave a comment

  • Anderson 2007.11.27 at 14:59 | Quote

    I don’t understand the need to order the patient-plaintiffs to sign authorizations. The court can enter a qualified protective order that eliminates any need for the authorizations.

  • Eric Turkewitz 2007.11.27 at 17:05 | Quote

    I have to guess that if courts were placed in the position of issuing orders in place of plaintiffs signing authorizations it would mean more work for the court as they parsed each order.

    You can bet, however, that there will be many legal battles as to the language that plaintiffs use in that authorization for an interview to indicate it was not signed voluntarily, but was coerced.

  • Anonymous 2007.11.27 at 19:17 | Quote

    Not that Texas should be held out as an example for ANYTHING related to personal injury law, but the Med Mal statute there actually requires the plaintiff to produce an authorization that permits the defense counsel to engage in ex parte oral communiucations with the Plaintiffs providers, along with presuit notice of claim.See section 74.051(b)of the Texas Civil Practice and Remedies Code.

    Texas law does provide that outside of the med mal context, the ability of the Defense to obtain any authorization at all, is somewhat limited however.

    However, at the end of the day, the moral of the story is, you guys should take care not to pack your own Court of Appeals and/or legislature with insurance company shills, as we have done.

  • Supremacy Claus 2007.11.27 at 23:05 | Quote

    Why do you support broad exploration in the discovery of plaintiffs? Then explain why you oppose the same for the defendant? The vast majority of cases are weak.

    This ruling obeys this plainly written rule.

    Ҥ 3102. Method of obtaining disclosure. (a) Disclosure devices. Information is obtainable by one or more of the following disclosure devices: depositions upon oral questions or without the state upon written questions, interrogatories, demands for addresses, discovery and inspection of documents or property, physical and mental examinations of persons, and requests for admission.
    (b) Stipulation or notice normal method. Unless otherwise provided by the civil practice law and rules or by the court, disclosure shall be obtained by stipulation or on notice without leave of the court.”

  • phildinhofer 2007.12.5 at 16:22 | Quote

    I am, Phil Dinhofer, plaintiff’s counsel in Arons. Please explain your belief that grounds for appeal to the US Supreme Court may be had as this escapes me. What federally protected right may be appealed that would be of interest to the Supreme Court? Federal decisional law clearly establishes that HIPAA creates no federally protected rights. I’d like to know your thoughts as maybe you see something else that I have missed.

    Otherwise, to all New York practitioners who read this, I strongly suggest that you hereafter emphasize and highlight in color on all authorizations, that the treating doctor is not obliged to talk with defense counsel and that doing so does not serve in his patients best interests. This additional language seems to comport with the Arons decision. I would further back this up with at the minimum a phone call to the doctor to reinforce the foregoing admonition, and if the doctor is important to your case, I would make the effort to see him personally before you let the defense have access … find out what he knows so you are not “ambushed” at trial.

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