Clarifies, that in the absence of a patient's authorization, a trial subpoena duces tecum seeking the production of medical records may be issued by the court.
TITLE OF BILL: An act to amend the civil practice law and rules, in relation to subpoenas duces tecum for medical records
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.
This measure would make clear that, in the absence of a patient's authorization, a trial subpoena duces tecum seeking the production of medical records may be issued under CPLR 2302(b) by a court, but not an attorney, and that CPLR 3122, requiring a patient's authorization, applies only to subpoenas issued during discovery.
In 2002, on our Advisory Committee's recommendation and at our request, CPLR 3122 was amended, together with several other related CPLR provisions, CPLR 2305(b), 3120, and 3122-a, to make it easier to obtain discovery documents from a non-party witness and admit them into evidence. L. 2002, c.575. The legislation eliminated the requirement that a party seeking documents from a non-party witness obtain a court order and a new, less cumbersome procedure was substituted. Among the changes made to CPLR 3122, which governs objections to and compliance with disclosure requests, was the inclusion of language at the request of the Medical Society to protect non-party physicians who were served with disclosure subpoenas seeking medical records. Language was inserted in CPLR 3122 in 2002 to help protect medical providers from unwittingly violating the physician-patient privilege by releasing medical records sought by a subpoena without a patient's authorization.
Shortly thereafter, a judge in Richmond Civil Court in Campos v. Payne, 2 Misc.3d 921 (2003), held that the limitations imposed by CPLR 3122 left him without authority to order the production of medical records pursuant to a trial subpoena on the eve of trial without the patient's signed authorization. We understand that Campos is now widely followed. It was not our intent in recommending the amendment of CPLR 3122, however, that the requirement for such an authorization apply to trial subpoenas and we do not believe the Legislature had that intent in adopting our recommendation. We believe the result in Campos is inadvisable as parties and the court need to have the ability to obtain relevant records (including medical records) so that the parties' claims and defenses can be fairly adjudicated.
This measure addresses the concerns of medical providers that they may be violating the Health Insurance Portability and Accountability Act ("HIPAA") by releasing a patient's medical records absent a court order by making it clear in the article governing subpoenas that, if a patient has not authorized the release of medical records, then a subpoena duces tecum for medical records may be issued only by a court and not by an attorney. We recommend that CPLR 2302(b) be
amended by adding a sentence providing that absent an authorization a subpoena for medical records may be issued only by a court.
Under the current language of CPLR 3122 and the ruling in Campos·v. Payne there is some question whether a court may "so order" a trial subpoena duces tecum for medical records when the plaintiff has refused to authorize the release ofthe records. The proposed amendment to CPLR 3122(a) resolves that uncertainty by making it clear that the requirement for an authorization is not applicable to a trial subpoena issued by a court. The amendment is consistent with HIP AA, which provides that "protected health information" may be released without an authorization in response to an order of the court. 45 C.P.R. 164.512 (introductory paragraph) and 164.512(e)(1)(i).
This measure would have no fiscal impact on the State. It would take effect immediately.
2009-10 LEGISLATIVE HISTORY:
Senate 5960 (Sen. Schneiderman) [Codes] Assembly 8318 (M. of A. Zebrowski) [Codes]
STATE OF NEW YORK ________________________________________________________________________ 4586--A 2011-2012 Regular Sessions IN SENATE April 13, 2011 ___________Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the civil practice law and rules, in relation to subpoe- nas duces tecum for medical records THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (b) of section 2302 of the civil practice law and rules, as amended by chapter 136 of the laws of 2007, is amended to read as follows: (b) Issuance by court. A subpoena to compel production of an original record or document where a certified transcript or copy is admissible in evidence, or to compel attendance of any person confined in a penitenti- ary or jail, shall be issued by the court. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day's notice to the person having custody of the record, document or person confined. A subpoena to produce a prisoner so confined shall be issued by a judge to whom a petition for habeas corpus could be made under subdivision (b) of section seven thousand two of this chapter or a judge of the court of claims, if the matter is pending before the court of claims, or a judge of the surrogate's court, if the matter is pending before the surrogate's court, or a judge or support magistrate of the family court, if the matter is pending before the family court, or a judge of the New York city civil court, if the matter is pending before the New York city civil court and it has been removed thereto from the supreme court pursuant to subdivision (d) of section three hundred twen- ty-five of this chapter. IN THE ABSENCE OF AN AUTHORIZATION BY A PATIENT, A TRIAL SUBPOENA DUCES TECUM FOR THE PATIENT'S MEDICAL RECORDS MAY ONLY BE ISSUED BY A COURT.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09303-02-1 S. 4586--A 2
S 2. Subdivision (a) of rule 3122 of the civil practice law and rules, as amended by chapter 575 of the laws of 2002, is amended to read as follows: (a) 1. Within twenty days of service of a notice or subpoena duces tecum under rule 3120 or section 3121, the party or person to whom the notice or subpoena duces tecum is directed, if that party or person objects to the disclosure, inspection or examination, shall serve a response which shall state with reasonable particularity the reasons for each objection. If objection is made to part of an item or category, the part shall be specified.
[A medical provider served with a subpoena duces tecum requesting the production of a patient's medical records pursuant to this rule need not respond or object to the subpoena if the subpoena is not accompanied by a written authorization by the patient. Any subpoena served upon a medical provider requesting the medical records of a patient shall state in conspicuous bold-faced type that the records shall not be provided unless the subpoena is accompanied by a written authorization by the patient.]The party seeking disclosure under rule 3120 or section 3121 may move for an order under rule 3124 or section 2308 with respect to any objection to, or other failure to respond to or permit inspection as requested by, the notice or subpoena duces tecum, respectively, or any part thereof. 2. A MEDICAL PROVIDER SERVED WITH A SUBPOENA DUCES TECUM, OTHER THAN A TRIAL SUBPOENA ISSUED BY A COURT, REQUESTING THE PRODUCTION OF A PATIENT'S MEDICAL RECORDS PURSUANT TO THIS RULE NEED NOT RESPOND OR OBJECT TO THE SUBPOENA IF THE SUBPOENA IS NOT ACCOMPANIED BY A WRITTEN AUTHORIZATION BY THE PATIENT. ANY SUBPOENA SERVED UPON A MEDICAL PROVID- ER REQUESTING THE MEDICAL RECORDS OF A PATIENT SHALL STATE IN CONSPICU- OUS BOLD-FACED TYPE THAT THE RECORDS SHALL NOT BE PROVIDED UNLESS THE SUBPOENA IS ACCOMPANIED BY A WRITTEN AUTHORIZATION BY THE PATIENT, OR THE COURT HAS ISSUED THE SUBPOENA OR OTHERWISE DIRECTED THE PRODUCTION OF THE DOCUMENTS. S 3. This act shall take effect immediately.