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:

• See previously: Medical Malpractice - Defense Firms Denied Right To Interview Plaintiff's Treating Docs (3/19/07, this site)
• New York, New York! (Arons allows ex parte interviews of treaters) (Beck/Herrmann with opposing view)
  

Labels: Personal Injury