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Keywords

plaintiffdefendantattorneydiscoveryappealtrialmotionmalpracticeHIPAA
lawsuitplaintiffdefendantattorneydiscoveryappealtrialmalpracticeregulationHIPAA

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Arons v. Jutkowitz, 9 N.Y.3d 393, 880 N.E.2d 831, 850 N.Y.S.2d 345, 2007 N.Y. Slip Op. 09309

Facts

The case involved multiple medical malpractice actions where plaintiffs alleged that their treating physicians failed to provide adequate care, resulting in severe health consequences. After filing a note of issue, defendants sought HIPAA-compliant authorizations to interview the plaintiffs' treating physicians. The plaintiffs refused, leading to motions to compel the authorizations. The Supreme Court granted the motions, but the Appellate Division reversed, prompting the defendants to appeal to the Court of Appeals.

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.

Issue

Whether an attorney may interview an adverse party's treating physician privately when the adverse party has affirmatively placed his or her medical condition in controversy.

These appeals call upon us to decide whether an attorney may interview an adverse party's treating physician privately when the adverse party has affirmatively placed his or her medical condition in controversy.

Rule

The court ruled that plaintiffs could be compelled to authorize defense counsel to conduct ex parte interviews with nonparty treating physicians, and that HIPAA does not prevent informal discovery.

We conclude that an attorney may do so, although the Health Insurance Portability and Accountability Act of 1996 (HIPAA) … imposes procedural prerequisites unique to the informal discovery of health care professionals.

Analysis

The court reasoned that by initiating a medical malpractice action, plaintiffs effectively waived their physician-patient privilege, allowing defendants to interview treating physicians. The court emphasized the importance of informal discovery practices and noted that while HIPAA imposes certain procedural requirements, it does not prohibit such interviews. The court also rejected the notion that the absence of explicit authority in the CPLR or Uniform Rules barred these informal interviews.

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 plaintiff's 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'.

Conclusion

The Court of Appeals reversed the Appellate Division's decision, allowing the defendants to conduct ex parte interviews with the plaintiffs' treating physicians while disallowing certain conditions imposed by the trial courts.

The Appellate Division, Second Department, reversed. The 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.

Who won?

Defendants prevailed in the case because the court upheld their right to conduct ex parte interviews with treating physicians, emphasizing the waiver of physician-patient privilege by the plaintiffs.

Defendants appealed. The Court of Appeals, Read, J., held that: plaintiffs could be compelled to authorize defense counsel to conduct ex parte, off-the-record interviews with nonparty treating physicians.

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