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.
TITLE OF BILL:
An act to amend the civil practice law and rules, in relation to enacting the "patient privacy protection act"
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.
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.
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.
2007-2008: S.5256A/A.8691-B 2009-2010: S.1514
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.
STATE OF NEW YORK ________________________________________________________________________ 3296--A 2011-2012 Regular Sessions IN 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