S3296A-2011 - NY Senate Open Legislation - Enacts the "patient privacy protection act"

Enacts the "patient privacy protection act"; prohibits interviews of other party's treating physicians or health care providers in personal injury, medical, dental, or podiatric malpractice or wrongful death actions.

Sponsor: DEFRANCISCO

Co-sponsor(s): AVELLA, RANZENHOFER

Committee: RULES
Law Section: Civil Practice Law and Rules
Law: Amd S3102, CPLR

S3296A-2011 Actions

Jun 21, 2012: COMMITTED TO RULES
Mar 6, 2012: ADVANCED TO THIRD READING
Mar 5, 2012: 2ND REPORT CAL.
Mar 1, 2012: 1ST REPORT CAL.263
Jan 4, 2012: REFERRED TO JUDICIARY
Jun 24, 2011: COMMITTED TO RULES
May 23, 2011: ADVANCED TO THIRD READING
May 18, 2011: 2ND REPORT CAL.
May 17, 2011: 1ST REPORT CAL.739
Apr 15, 2011: PRINT NUMBER 3296A
Apr 15, 2011: AMEND AND RECOMMIT TO JUDICIARY
Mar 8, 2011: COMMITTEE DISCHARGED AND COMMITTED TO JUDICIARY
Feb 15, 2011: REFERRED TO CODES

S3296A-2011 Meetings

Judiciary: Mar 1, 2012, Judiciary: May 17, 2011

S3296A-2011 Calendars

S3296A-2011 Votes

VOTE: COMMITTEE VOTE: - Judiciary - May 17, 2011

Ayes (14): Bonacic, DeFrancisco, Flanagan, Fuschillo, Lanza, Nozzolio, Ranzenhofer, Zeldin, Adams, Espaillat, Gianaris, Krueger, Squadron, Stavisky
Ayes W/R (4): LaValle, Little, Breslin, Serrano
Nays (5): O'Mara, Saland, Hassell-Thompson, Dilan, Perkins

VOTE: COMMITTEE VOTE: - Judiciary - Mar 1, 2012

Ayes (12): Bonacic, DeFrancisco, Flanagan, Fuschillo, Little, Ranzenhofer, Dilan, Espaillat, Gianaris, Krueger, Squadron, Stavisky
Ayes W/R (9): Lanza, LaValle, Nozzolio, Zeldin, Hassell-Thompson, Adams, Breslin, Perkins, Serrano
Nays (2): O'Mara, Saland

S3296A-2011 Memo

BILL NUMBER:S3296A

TITLE OF BILL:

An act
to amend the civil practice law and rules, in relation to
enacting the "patient privacy protection act"

PURPOSE:

To prohibit in a personal injury, medical, dental or podiatric
malpractice or wrongful death action the defendant from conducting
ex-parte interviews with the plaintiffs nonparty treating physicians.

SUMMARY OF PROVISIONS:

This bill prohibits in any action involving personal injury, medical,
dental or podiatric malpractice, or wrongful death the defendant from
conducting ex-parte interviews with the plaintiffs nonparty treating
physicians. This bill also clarifies that an attorney or the agent or
employee of an attorney who represents the patient, the estate of the
patient, or the natural or duly appointed guardian of the patient
whose condition is at issue in the action may conduct ex-parte
conversations with a treating physician or other health care provider
of the patient.

EXISTING LAW:

Neither CPLR Article 31 nor the Uniform Rules includes a provision
authorizing defense counsel on behalf of his or her client to meet
privately with plaintiffs nonparty treating physician. Article 31 of
the CPLR specifically provides the permissible rules of discovery. In
its decision of Arons v. Jutkowitz 9 NY 3d 393 (2007) the Court of
Appeals ignored the rules of Article 31 and by judicial fiat created
a new rule. This bill would correct that ill-advised decision.

JUSTIFICATION:

This legislation has become necessary because of the interplay between
the Federal Health Insurance Portability and Accountability Act of
1996 (42 use Section 1320(d) et seq.) commonly referred to as HIPAA
and the defense bar's informal practice of privately interviewing
plaintiffs' nonparty treating physicians, sometimes even after a note
of issue has been filed.

Frequently in actions involving personal injury, medical malpractice
and wrongful death defense counsel have requested that plaintiff
execute authorizations which would, pursuant to HIPAA, have
permitted them after the filing of the note of issue to informally
and privately interview nonparty treating physicians who rendered
care to the plaintiff or decedent, as the case may be, related to the
action. Plaintiffs believing that such interview are either
unwarranted or not authorized by law have often refused to execute
such authorizations and this has created a great deal of legal and
judicial comment about the efficacy of these post note of issue
requests for discovery.


It has never been in much question that a plaintiff to a personal
injury or medical malpractice action waives the physician-patient
privilege with respect to those physical or mental conditions which
he or she has alternatively placed in issue in the lawsuit.
Defendants in such actions have an absolute right to disclosure
regarding the relevant medical conditions in issue and they may
utilize any of the disclosure devices set forth in CPLR Article 31 or
the Uniform Rules for the NYS Trial Courts (Uniform Rules) to obtain
such disclosure. Included in these is a provision that upon the
issuance of a subpoena a defendant may depose a plaintiffs nonparty
treating physician pursuant to CPLR 3106(b). However, neither CPLR
Article 31 nor the Uniform Rules includes a provision authorizing
defense counsel on behalf of his or her client to meet privately with
plaintiffs treating physician. Further because of the availability of
disclosure under CPLR Article 31 such private interviews have been
prohibited during discovery prior to the filing of a note of issue.

Since the adoption of HIPAA in 1996 issues over patient privacy has
been of increasing concern and defense counsel have faced a practical
dilemma in attempting to speak privately with plaintiffs nonparty
treating physicians. Physicians are now requiring either written
authorizations signed by the plaintiff which comply with HIPAA and
which permit oral communication or a court order authorizing such
oral communications which likewise complies with HIPAA. When
plaintiffs refuse after the filing of a note of issue to execute such
authorizations defendants have moved to compel plaintiffs execution
of such authorizations. This has generated a multitude of cases and
most recently in ARONS V. .TUTKOWITZ 9 NY 3d 393 (2007) the Court of
Appeals held that an attorney may interview an adverse party's
treating physician privately where the adverse party has
affirmatively placed his or her medical condition in controversy,
although HIPAA imposes certain procedural prerequisites. This holding
would now permit defense counsel to obtain court ordered HIPAA
compliant authorizations at any time and use them at any time both
prior to and after the filing of the Note of Issue and Certificate of
Readiness. This ignores CPLR Article 31, and creates
post-note of issue discovery, which is expressly prohibited
by the Uniform Rules unless the party seeking the discovery can
demonstrate "unusual or unanticipated circumstances developed
subsequent to the filing of the Note of Issue and Certificate of
Readiness which requires additional pretrial proceedings to prevent
substantial prejudice." (22NYCRR Sec. 202.21(d).

Therefore, this legislation would statutorily reverse this judicial
ruling and make it clear that in any action involving personal
injury, medical, dental or podiatric malpractice, or wrongful death
the defendant is barred from conducting such ex parte interviews with
the plaintiffs nonparty treating physicians.

LEGISLATIVE HISTORY:

2007-2008: S.5256A/A.8691-B
2009-2010: S.1514

FISCAL IMPLICATIONS:

None.


EFFECTIVE DATE:

Shall take effect on the thirtieth day after it shall become law and
shall apply to all actions involving personal injury, medical, dental
or podiatric malpractice, or wrongful death filed on and after such
date and to all such actions pending on such effective date except as
to conduct prohibited by section one of this act with occurred prior
to such effective date.

S3296A-2011 Text


                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   3296--A

                         2011-2012 Regular Sessions

                              I N  SENATE

                              February 15, 2011
                                 ___________

  Introduced  by  Sens. DeFRANCISCO, RANZENHOFER -- read twice and ordered
    printed, and when printed to be committed to the Committee on Codes --
    committee discharged and said bill committed to the Committee on Judi-
    ciary -- committee discharged,  bill  amended,  ordered  reprinted  as
    amended and recommitted to said committee

  AN  ACT to amend the civil practice law and rules, in relation to enact-
    ing the "patient privacy protection act"

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section  1.  Short title.  This act shall be known and may be cited as
  the "patient privacy protection act".
    S 2.  Section 3102 of the civil practice law and rules is  amended  by
  adding a new subdivision (c-1) to read as follows:

    (C-1)  EX-PARTE  INTERVIEWS.  IN ANY ACTION INVOLVING PERSONAL INJURY,
  MEDICAL, DENTAL, OR PODIATRIC MALPRACTICE OR WRONGFUL DEATH, NO PARTY OR
  ANYONE ACTING ON BEHALF OF A PARTY MAY  EITHER  DIRECTLY  OR  INDIRECTLY
  CONDUCT EX-PARTE INTERVIEWS WITH THE TREATING PHYSICIANS OR OTHER HEALTH
  CARE  PROVIDERS  OF  ANY OTHER PARTY.  NOTHING IN THIS SUBDIVISION SHALL
  PROHIBIT AN ATTORNEY OR THE AGENT OR EMPLOYEE OF AN ATTORNEY WHO REPRES-
  ENTS THE PATIENT, THE ESTATE OF THE PATIENT,  OR  THE  NATURAL  OR  DULY
  APPOINTED  GUARDIAN  OF  THE  PATIENT WHOSE CONDITION IS AT ISSUE IN THE
  ACTION FROM CONDUCTING EX-PARTE CONVERSATIONS WITH A TREATING  PHYSICIAN
  OR OTHER HEALTH CARE PROVIDER OF THE PATIENT.
    S  3.  This  act shall take effect on the thirtieth day after it shall
  have become a law and shall apply  to  all  actions  involving  personal
  injury,  medical,  dental  or  podiatric  malpractice, or wrongful death
  filed on and after such date and to all such  actions  pending  on  such
  effective  date  except  as to conduct prohibited by section two of this
  act which occurred prior to such effective date.

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD02414-05-1

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that links to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

*By contributing or voting you agree to the Terms of Participation and Privacy Policy and verify you are over 13.

S3296A-2011: Enacts the "patient privacy protection act"