Smith v Rafalin

[*1] Smith v Rafalin 2005 NY Slip Op 50385(U) Decided on March 24, 2005 Supreme Court, New York County Sklar, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 24, 2005
Supreme Court, New York County

SUZANNE E. SMITH, Plaintiff,

against

SAMUEL RAFALIN, M.D., A WOMEN'S MEDICAL, P.C., ALL WOMEN'S HEALTH, INC., LENOX HILL RADIOLOGY & MEDICAL IMAGING ASSOCIATES, P.C., LYNN LADETSKY, M.D., OLGA TSIRESHKIN, M.D., ARNOLD A. LIPTON, M.D., ARNOLD A. LIPTON, M.D., P.C., YEFIM VAYNSHELBAUM, M.D. and PARK AVENUE MEDICAL IMAGING AND MAMMOGRAPHY, P.C., Defendants.



117182/03

Stanley L. Sklar, J.

Defendants Yefim Vaynshelbaum and Park Avenue Medical Imaging & Mammography, P.C., move for an order pursuant to 45 C.F.R. Section 164.512(e)(1)(I) and 45 C.F.R. Section 164.508 for an order directing plaintiff to provide authorizations permitting defense counsel to speak privately with certain subsequent treating physicians who rendered care to the plaintiff related to claims being made in this medical malpractice action, if the physicians voluntarily agree to the interview. If granted, the application raises ancillary issues as to whether defense counsel would have to turn over any notes or recordings of their conversations with the physicians and as to any limiting language in the authorizations.

The issue of whether defense counsel should, post HIPAA, be permitted to interview subsequent treating doctors has generated considerable controversy in the medical malpractice bar. The position of the plaintiffs' bar has been articulately set forth, not only in the papers on this application, but also in two articles, Moore and Gaier, Medical Malpractice: Interviews with Treating Physicians, N.Y.L.J., July 6, 2004 at 3, col.1 and Bloom and Steigman, A HIPAA Primer, Bill of Particulars, New York State Trial Lawyers Association, Winter 2005, p 20. Essentially plaintiffs' counsel never thought that it was fair to permit defense counsel to have unfettered ex parte communications with plaintiffs' subsequent treating physicians, purportedly giving them an undue advantage in trial preparation, and urge that the enactment of HIPAA and the promulgation of regulations under HIPAA now bar the practice. On the other hand defense counsel urge with equal passion that it is essential for them to continue having access to a plaintiff's subsequent treaters so that they can adequately prepare for trial and that HIPAA and the regulations have not altered the practice. Several of my distinguished colleagues have written [*2]on this issue, each striving to achieve a balance that is fair to both sides. Regrettably, thus far appeals have evidently not been taken from the orders entered so that we do not have the appellate guidance that would definitively resolve these issues. The basic pre-HIPAA and post-HIPAA law has been set forth in detail in the several decisions of my learned colleagues, so that it is not necessary to review that law in detail. However, a brief overview is required before proceeding further.

The Legal Background Pre-HIPAA Anker v Brodnitz, 98 Misc2d 148, aff'd 73 AD2d 589, lv.denied 51 NY2d 703 (1980), which barred ex parte interviews by defense counsel, has been interpreted as limited to the pre-note of issue period by the subsequent decisions of Zimmerman v Jamaica Hosp., Inc., 143 AD2d 86 (2nd Dep't, 1988), lv. denied 73 NY2d 702 (1988); Fraylich v Maimonides Hosp., 251 AD2d 251 (1st Dep't, 1998); Tiborsky v. Martorella, 188 AD2d 795 (3rd Dep't, 1992); Levande v Dines, 153 AD2d 671 (2d Dep't, 1989); Luce Guardian for Luce v State, 266 AD2d 877 (4th Dept., 1999). Since Zimmerman, decided 17 years ago, post-note of issue ex parte interviews of subsequent treaters has been permitted, evidently either without the parade of horrors now feared by plaintiffs' counsel, or with the "problems" being so rare that they have never been brought to my attention.

HIPAA

HIPAA, enacted by Congress in 1996, contained a provision to create a "federal floor" of privacy for Protected Health Information (PHI). US Department of Health and Human Services "Fact Sheet", April 13, 2003 (Cohen moving affirmation, Ex. B) Regulations were proposed by the Secretary of Health and Human Services and final regulations have been issued to provide for the implementation of HIPAA. In the final rule, disclosure of PHI is permitted: 1. Pursuant to an authorization from the patient or patient's representative. 45 C.F.R. Section 164.508;

2. Pursuant to court order. 45 C.F.R. Section 164.512(e)(1)(i); or

3. Pursuant to a subpoena, discovery request or other lawful process not accompanied

by a court order provided;

a) The Patient has been given reasonable notice, or

b) Reasonable efforts have been made to secure a qualified protective order. 45

C.F.R. Section 164.512(e)(ii).

These protections are in accord with New York law that has these protections. These requirements were aimed at states that did not protect indentifiable health care information. See, e.g. McCormick v England, 328 S.C. 627, 494 S.E.2d 431 (Supreme Court, SC, 1997) (no physician-patient privilege in South Carolina).

In the preamble to the final regulations the drafters note the provisions

are not intended to disrupt current practice whereby an individual who is a party

to a proceeding and has put his or her medical condition at issue will not prevail

without consenting to the production of his or her protected health information.

In such cases, we presume that parties will have ample notice and an opportunity to

object in the context of the proceeding in which the individual is a party.

65 Fed. Reg. at 82530.

[*3]Health information includes "any information", whether oral or recorded in any form or medium," concerning a patient's physical or mental health. 45 C.F.R. Section 164.103.

HIPAA does not create a federal physician-patient privilege, but is procedural in setting minimum federal requirements for the production of PHI. It does not change substantive law.

All that 45 C.F.R. 164.512(e) should be understood to do, therefore, is to create a

procedure for obtaining authority to use medical records in litigation. ... We do not

think HIPAA is rightly understood as an Act of Congress that creates a privilege.

Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923 (U.S.C.A. 7th Cir., 2004)

Waiver of the Physician Patient Privilege and Equal Access

New York, with few exceptions, does not recognize a proprietary right to the testimony of a physician. In McDermott v Manhattan Eye, Ear and Throat Hospital, 15 NY2d 20 (1964), the Court of Appeals held that a medical malpractice plaintiff could call the defendant as a witness at trial and question the doctor as to fact and opinion. In Gilly v City of New York, 69 NY2d 509, at 512 (1987), the Court of Appeals held that a physician who examined the plaintiff at the instance of the defendant, "had formulated his findings and had them conveyed to both parties in the litigation should not be barred from relating the substance of his report when called as a witness by the plaintiff." See Meyer, The Expert Witness: Some Proposals for Change, 45 St. John's L. Rev. 105 (1970). The federal court in Doe v. Eli Lilly & Co, 99 F.R.D. 126, at 128 (U.S.D.C., Dist. of Columbia, 1983), agreed stating that:

As a general proposition, however, no party to a litigation has anything resembling a

proprietary right to any witness's evidence. Absent a privilege, no party is entitled to

restrict an opponent's access to a witness, however partial or important to him, by

insisting on some notion of allegiance. Id. at 128.

Doe was a products liability case in which the plaintiffs' physical and mental conditions

were contested. Defendant sought to require plaintiffs to give authorizations allowing defense counsel to speak with treating physicians. Plaintiffs objected asserting that the information sought should be obtained by depositions, and said that they would not assert the physician patient privilege to hamper the depositions.

Doe granted the application and permitted the ex parte interviews, stating that:

Unless impeded by privilege an adversary may inquire, in advance of trial, by any

manner to learn what any witness knows if other appropriate conditions the witness

alone may impose are satisfied, e.g. compensation for his time and expertise or the

payment of reasonable expenses involved, and while the Federal Rules of Civil Procedure

have provided certain specific formal methods of acquiring evidence from recalcitrant

sources by compulsion, they have never been thought to preclude the use of such

venerable, if informal, discovery techniques as the ex parte interview of a witness who

is willing to speak. Id. at 128.

The Court dealt with the physician patient privilege by stating:

The privilege was never intended, however, to be used as a trial tactic by which a party [*4]

entitled to invoke it may control to his advantage the timing and circumstances of the

release of information he must inevitably see revealed at some time.

The inchoate threat implicit in refusing or qualifying permission to speak with a witness

in possession of privileged information operates to intimidate the witness, who is then

placed in the position of withholding or divulging what he knows at his peril, and is

itself a species of improper influence. It also enables the party so wielding the privilege

to monitor his adversary's progress in preparing his case by his presence on each occasion such information is revealed while his own preparation is under no such scrutiny. The Court concludes that it would be an abuse of the privilege to be used

in such a manner which has no relation to the purpose for which it exists. Id. at 128-129.

Defense Counsel Should be Permitted to Continue

the Practice of Ex Parte Interviews

Under New York law, the patient instituting a medical malpractice lawsuit waives the physician patient privilege with respect to all relevant physical and mental conditions. Koump v Smith, 25 NY2d 287 (1969). Plaintiff is therefore required to furnish HIPAA compliant authorizations for all relevant medical records during disclosure. Should plaintiff be compelled to provide such authorizations post note of issue so that defense counsel may have ex parte interviews with plaintiff's treating physicians as they as they have in the past? The decisions of my distinguished colleagues at nisi prius have split on this issue. Plaintiff urges, relying on

Browne v. Horbar, ____Misc2d____ (2004 WL 2827657) (Sup Ct, NY Co, 2004, Bransten J.) that the ex parte post-note of issue interviews of treating doctors should be barred and defense counsel should ordinarily be limited to examinations before trial prior to a note of issue. Special circumstances are no longer required to secure a deposition of a physician or any other person who has material and necessary information concerning a lawsuit. However, the courts have been loathe to subject a non-party to a deposition unnecessarily, and I have denied a number of applications over the years for ebts of physicians who have furnished their medical records to counsel. I have held that something more must be shown, such as incomplete or clearly inadequate records, to justify a deposition of a non party treating physician.

If defense counsel were relegated to seeking depositions, there would likely be a large initial increase in motion practice in the courts until it became clear to the bar that few such motions would be granted. The impact of a rule so limiting defense counsel would be to effectively eliminate their opportunity to have any interview of the treating physician since experience suggests that extremely few motions to permit depositions would be granted. This would create the unfair situation decried in the Doe decision, supra . Defense counsel could not have access to the treating physicians but plaintiff's counsel could secure an authorization from the plaintiff permitting plaintiff's counsel to speak with the physician. This one sided access to the physicians would be manifestly unfair.

At oral argument I asked experienced counsel what percentage of treating doctors have been willing to grant private interviews with counsel, even when counsel has an authorization from the plaintiff permitting the doctor to speak with counsel. Neither counsel had a percentage they [*5]could cite, but both opined that far less than 50% of the physicians would speak with them.

The convenience of the physicians should also be considered. Having a doctor attend a deposition at a lawyer's office requires the doctor to cancel at least a half day of surgery or other care of patients. Many doctors being confronted with the making of a formal record also want to be represented by counsel. The formalities of a deposition are burdensome as contrasted with either a telephone conversation or a short interview with counsel at the doctor's office at a time of the doctor's choosing without the doctor being on a formal record. One might surmise that many physicians would not even consent to an interview if it were being sound recorded, much less videotaped. Compare Niesig v Team I, 76 NY2d 363, at 372 (1990), in which the Court said: Foreclosing all direct, informal interviews ... unnecessarily sacrifices the long-recognized potential value of such sessions. 'A lawyer talks to a witness to ascertain what, if any, information the witness may have relevant to his theory of the case, frequently in light of information counsel may have developed from other sources. This is part of an attorney's so-called work product'. (International Business Machs. Corp. v. Edelstein, 526 F2d 37, 41 [citing Hickman v. Taylor, 329 US 495].) Costly formal depositions that may deter litigants with limited resources, or even somewhat less formal and costly interviews attended by adversary counsel, are no substitute for such off-the-record private efforts to learn and assemble, rather than perpetuate, information.

Accordingly, the desire of both sides to have access to a medical provider militates in favor of an informal interview at the physician's office. Fairness in providing equal access to the physicians militates in favor of permitting continuation of interviews by defense counsel. Not only have the majority of my distinguished colleagues who have written decisions on this subject of which I am aware agreed, but Justice Lunn made the critical point in his decision in Steele v. Clifton Springs Hospital, — Misc2d — , 788 NYS2d 587 (Sup Ct., Monroe County, 2005) that we are required to permit the continuation of ex parte interviews of subsequent treaters by defense counsel until the appellate cases permitting them are overruled binding appellate authority.

Six decisions have been written of which I am aware that authorize the continuation of post-note of issue interviews by defense counsel. In Beano v. Post, (Sup. Ct., Queens Co., 2004, March 12, 2004, Dollard, J., Index No. 5694-2001 ), the court stated:

Prior to HIPAA New York case law held that no explicit authorization was required

for a private interview, the bringing of an action putting the plaintiff's medical

condition at issue having constituted a waiver of the statutory physician-patient

privilege. (citations omitted).

It would appear to the court that implicit in that waiver is an obligation to provide an

authorization to interview a treating physician ... in which PHI may be disclosed.

Accord: Keshecki v St. Vincent's Medical Center, 5 Misc 3d 539 (Sup. Ct., Richmond Co., 2004, Maltese, J.); ); O'Neil v Klass, (Sup. Ct., Kings Co., 2004, October 29, 2004, Rosenberg, J., Index No. 3808-2002, ); Zaoutis v Aronis, M.D. (Sup. Ct., NY Co., November 23, 2004, Abdus-Salaam, J.); Steele v Clifton Springs Hospital, supra (Lunn, J.); Sokolnicki v Staten Island University Hospital ( Sup. Ct., Richmond Co., March 16, 2005, Aliotta, J., Index No. 10909-2000). [*6]

Plaintiff's reliance on Law v Zuckerman, 307 F. Supp2d 705 (U.S.D.C., D. Maryland, So. Division, 2004) as barring the requested ex parte interviews is misplaced. In Law, defense counsel evidently ignored the requirements of HIPAA set forth above as to how to secure PHI and without benefit of the plaintiff's authorization or even notice to plaintiff's counsel, had an ex parte communication with a physician who had treated plaintiff.

I conclude that HIPAA does not bar the continuation of the practice of permitting defense counsel to have ex parte interviews of plaintiff's treating physicians. However, such interviews may be had only in compliance with the methods allowed by HIPAA, either by contacting plaintiff's counsel and securing a voluntary authorization for the requested interview, or by giving plaintiff's counsel's notice. The desired notice should be given by defense counsel to plaintiff's counsel prior to the pre-trial conference which I hold as soon as possible after a note of issue has been filed. At that conference we can then not only discuss the nature of the claim, prospective witnesses, settlement demands, and the trial date, but any controversy regarding any requested interview of a plaintiff's physicians.

Work Product

Beano, Kescheki and O'Neil required that, within five business days after the interview, defense counsel must give plaintiff's counsel:

1. true, complete and unedited copies of any and all written statements, written

material and/or written notations on any document obtained from the persons

interviewed;

2. copies of any and all memoranda and notes reporting any oral statements made by

the person or persons interviewed; and

3. copies of any audio or video tapes or discs of the interview including any

stenographic or other transcripts.

The Beano court stated that defense counsel "need not disclose any observations, conclusions, mental impressions or analysis of or by the person taking the deposition." The Court imposed these three requirements "so that the plaintiff will not be unfairly taken by surprise by a treating physician or other witness offering trial testimony as to facts or findings not incorporated in written records previously made available to plaintiff or plaintiff's attorney". No reciprocal obligation was imposed on plaintiff's counsel with respect to any interviews conducted on behalf of plaintiff with a subsequent treating physician.

Defendants protest that any notes taken by them, or recordings made by them, are attorney work product and need not be disclosed. In the landmark case of Hickman v Taylor, 329 US 495, (1947), the Supreme Court of the United States cautioned against requiring a lawyer to turn over notes of an ex parte interview of a witness, noting that forcing a lawyer to write out all that the witness said gives rise to dangers of inaccuracy, and forces a lawyer to testify as to what the lawyer regarded as noteworthy. It added that using the statement for impeachment or corroboration makes an attorney less of an officer of the court and more of an ordinary witness, causing the standards of the profession to suffer. Id. 329 US at 512-13. See also Justice Jackson's warnings in his concurring opinion. Id. 329 US at516-17. [*7]

In Fraylich v Maimonides Hospital, 251 AD2d 251 (1st Dept, 1998), dealing with interviews of plaintiff's treating physicians, the Court said: "Nor are plaintiffs entitled to any documents defendants' attorney may have created relating to the interview, such being privileged as attorney work product (CPLR 3101[c]; see Corcoran v Peat, Marwick, Mitchell & Co., 151 AD2d 443, 445). That part of plaintiffs' motion as sought to compel defendants' attorney to identify the treating physicians with whom he has met was properly denied as moot ..." 251 AD2d at 251-252. Accord: Siemens Solar Industries v Atlantic Richfield Company, 246 AD2d 476 (1st Dept., 1998); Acwood International Steel Corp. v Frenkel & Company, 165 AD2d 752 (1st Dept., 1990). In Manning v Sikorsjyi, 204 AD2d 976 (4th Dept., 1994), the Court held that a tape recording of an interview was protected from discovery as an attorney's work product.

Under these authorities, I shall require defense counsel to turn over within five business days of any interview any portion of the physician's records that may not previously have been given to the parties; however I decline to order that any memoranda or notes or recordings relating to the interview be turned over to plaintiff's counsel.

Language of the Authorization

I agree with my distinguished colleagues who have written on the issue that the use of HIPAA complaint authorizations is generally preferable to a subpoena or a court order. However, in appropriate circumstances, the Court may issue an order. The remaining issue is the language of the authorization. Defense counsel has understandingly proposed variants of "neutral" language clearly designed to increase the chances that a physician might be willing to talk with defense counsel. I decline to endorse those efforts, but believe the language should be that commonly utilized since, Keshecki, supra ,

The authorization on its face should state in BOLD letters

that the purpose of the disclosure is not at the request of

[the plaintiff] patient; and

The purpose should be stated in BOLD print that: 'The purpose

of the information is to assist the defendant in defense of a lawsuit

brought by the plaintiff'; and

The authorization must contain the name and business address

of the person to whom the health care provider or hospital

employee may give an interview and identify the persons or entities

the interviewer is representing (see, 45 CFR § 164.508[c][iii]).

Plaintiff's counsel next correctly urges that the physician patient privilege is waived as to any medical or mental condition in issue in the lawsuit, and not to unrelated medical or mental conditions. If the physician in question is a specialist who was seen by the patient for treatment of

the physical or mental condition in issue, limiting language would generally not be required in the authorization. If however the physician is an internist or family practitioner, limiting [*8]language may be required to restrict the interview to the physical or mental condition at issue. I shall deal with any needed restrictions in a telephone conference call in this case with counsel. In the future, any desired restriction should be discussed at the initial pre-trial conference.

The Court will promptly set up a telephone conference call with both counsel to arrange scheduling and to discuss any necessary limiting language.

Accordingly, it is hereby

ORDERED, that plaintiff shall, within five days, provide defense counsel with authorizations, legended as above indicated, permitting defense counsel to request ex parte interviews of the treating physicians listed in the Cohen moving affirmation, as modified at oral argument, and it is further

ORDERED, that defense counsel, shall, within five days of any interview, turn over to plaintiff's counsel copies of any records of that physician not previously received during disclosure, but need not turn over any materials, notes, memoranda or recordings resulting from any interview.



Dated:New York, NY

March 24, 2005

J.S.C.