Holzle v Healthcare Servs. Group, Inc.

[*1] Holzle v Healthcare Servs. Group, Inc. 2005 NY Slip Op 50770(U) Decided on May 24, 2005 Supreme Court, Niagara County Curran, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2005
Supreme Court, Niagara County

Tammy Holzle and Ralph Holzle, Plaintiffs,

against

Healthcare Services Group, Inc. and Thyssen Krupp Elevator Corp., Defendants.



110376



Grossman & Civiletto

Attorneys for Plaintiffs

By: Samual J. Civiletto, Esq., of Counsel

Damon & Morey, LLP

Attorneys for Defendant Healthcare Services Group, Inc.

By: Marylou K. Roshia, Esq., of Counsel

Osborn, Reed & Burke, LLP

Attorneys for Defendant Thyssen Krupp Elevator Corp.

By: Jeffrey M. Wilkins, Esq., of Counsel

John M. Curran, J.

Defendant, Healthcare Services Group, Inc. ("HSG"), has moved for an Order vacating plaintiffs' note of issue and certificate of readiness ("note of issue"), and compelling plaintiff, Tammy Holzle ("plaintiff"), to comply with its demand for medical authorizations permitting defense counsel to privately interview plaintiff's treating physicians. Alternatively,

HSG requests that the Court enter an Order precluding plaintiffs from offering testimony or records of plaintiff's treating physicians at trial and further prohibiting plaintiffs' attorneys from speaking with plaintiff's treating physicians prior to trial. Defendant, Thyssen Krupp Elevator Corp. ("TKEC"), moves for an Order requiring plaintiff to provide medical authorizations which permit defendant's counsel to speak with plaintiff's treating physicians prior to trial. [*2]

In support of its motion, HSG has submitted the Notice of Motion dated February 14, 2005, the Affidavit of Marylou K. Roshia, Esq., sworn to on February 14, 2005, together with exhibits, and the Reply Affidavit of Marylou K. Roshia, Esq., sworn to on April 29, 2005. In support of its motion, TKEC has submitted the Notice of Motion dated February 16, 2005 and the Affidavit of Jeffrey M. Wilkins, Esq., sworn to on February 16, 2005, together with exhibits. In opposition to the motions, plaintiffs have submitted the Affirmation in Opposition from Samual J. Civiletto, Esq., affirmed on March 30, 2005, together with exhibits. Oral argument was conducted on May 5, 2005, whereupon the Court heard from Ms. Roshia on behalf of defendants in support of the motions and from Mr. Civiletto on behalf of plaintiffs in opposition thereto. Mr. Wilkins submitted on papers.

This action was commenced in 2001 and involves plaintiff's allegations that she suffered personal injuries as a result of a fall at the geriatric center owned by defendant HSG on December 23, 1998, and as a result of being struck by an elevator door maintained by defendant TKEC on February 24, 1999. Following a conference conducted with the attorneys on August 30, 2004, the Court entered a Scheduling Order dated September 1, 2004, setting forth

deadlines which were agreed upon by counsel. Pursuant to that Scheduling Order, all discovery was to be complete by December 31, 2004, and plaintiff was to file a note of issue on or before

February 1, 2005. The Court conducted a pretrial conference on January 7, 2005, at which time a trial was set for September 8, 2005. Plaintiffs filed and served a note of issue on January 25, 2005.

On January 12, 2005, HSG demanded that plaintiff provide authorizations permitting defense counsel to speak with plaintiff's treating physicians. Counsel for TKEC joined in this request on or about January 31, 2005. Plaintiff rejected the demand for the authorizations which precipitated these motions.

Defendants claim that they are entitled to speak to plaintiff's treating physicians after the note of issue is filed and before trial. However, according to the defendants, regulations recently adopted pursuant to the federal Health Insurance Portability and Accountability Act ("HIPAA") make it necessary for plaintiff to provide authorizations permitting defense counsel to speak with her treating physicians.

The interplay between New York law and HIPAA is becoming an area garnering substantial attention in the courts. There are now numerous state and federal decisions addressing whether and/or to what extent HIPAA has altered state court practice with respect to disclosure and trial preparation.

Historical Background

In 1969, the Court of Appeals made clear that a plaintiff [FN1] in a personal injury action waives the physician-patient privilege by commencing the action as to the conditions complained of in the action (Koump v Smith, 25 NY2d 287, 294 [1969]). "We hold, therefore, that by bringing or defending a personal injury action in which mental or physical condition is affirmatively put in issue, a party waives the privilege. As a practical matter, a [*3]plaintiff or a defendant, who affirmatively asserts a mental or physical condition, must eventually waive the privilege to prove his case or his defense. To uphold the privilege would allow a party to use it as a sword rather than a shield. A party should not be permitted to assert a mental or physical condition in seeking damages or in seeking to absolve himself from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim and the nature and extent of the injury or condition."

(Koump, 25 NY2d at 294). The courts also have disallowed any tort claims for a breach of confidentiality so long as the information was disclosed pursuant to a waiver or consent (see Fedell v Wierzbieniec, 127 Misc 2d 124, affd 116 AD2d 990 [4th Dept. 1986]; Steiner v University of Rochester, 278 AD2d 827 [4th Dept 2000]).

CPLR § 3121 has for decades contained a provision requiring a person claiming injuries to provide "duly executed and acknowledged written authorizations permitting all parties to obtain, and make copies of, the records of all specified hospitals relating to such mental or physical condition or blood relationship." Further, the Uniform Rules for the New York State Trial Courts ("Uniform Rules"), effective in 1986, contain a provision which provides that, at least twenty days before the mental or physical examination provided for in the Uniform Rules and under CPLR § 3121, the party to be examined must provide: "duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of all hospital records and such other records, including x-ray and technicians' reports as may be referred to and identified in the reports of those medical providers who have treated or examined the parties seeking recovery." (Uniform Rules for Trial Ct [22 NYCRR] § 202.17 [b]).

The courts appear to have taken a largely restrictive view of the statute and rules with respect to the types of information which can be authorized to be made available in the course of discovery. Before the Uniform Rule was adopted, and during the time the Fourth Department had its own local rule, the Fourth Department held that neither the rules nor the CPLR authorized an informal interview of a medical witness (Cwick v City of Rochester, 54 AD2d 1078 [4th Dept 1976]). Additionally, in Feretich v Parsons Hosp. (88 AD2d 903 [2d Dept 1982], the Second Department agreed that an authorization provided by a personal injury plaintiff could contain language that the authorization was not intended to permit the medical provider to discuss the plaintiff's case. Similarly, in Frasier v Conklin (105 AD2d 1018 [3d Dept 1984]), the Third Department struck a provision from the lower court's order requiring the plaintiff to provide continuing discovery in the form of medical records from treating physicians because it exceeded what the local rules and statute require.

As noted, the decisions in Cwick, Feretich and Frasier were all rendered before the Uniform Rule with respect to authorizations was promulgated. The Uniform Rule contains no language retreating from this restrictive view. Thus, the rationale of all three cases is still valid.

The issue of a defense counsel's informal interview of plaintiffs' treating physicians was directly addressed in Anker v Brodnitz (98 Misc 2d 148 [Sup Ct, Queens County [*4]1979], affd 73 AD2d 589 [2d Dept 1979], lv dismissed 51 NY2d 743 [1980]). There, the court held that private interviews of treating physicians were specifically prohibited: Although the private interviews in the case at bar occurred prior to the formal exchange of medical records, the rationale of this decision is applicable to private interviews sought after such exchange. The adequacy of formal discovery procedures, the difficulty of determining what medical information is relevant, and the possibility of doctors or insurers becoming the object of lawsuits for unauthorized disclosure require that there be no private interviews without a patient's express consent.

(Anker, 98 Misc 2d at 154).

Significantly, Anker relies in part on the Fourth Department's decision in Cwick for the proposition that "medical discovery should be limited to that obtainable by rule, statute, or express consent and private interviews would not be allowed even after the exchange of medical records." (98 Misc 2d at 151). Further, in Feretich, supra, the Second Department made clear that Anker was not founded on the physician-patient privilege, but rather "by the very design of the specific disclosure devices available in CPLR Article 31." (88 AD2d at 904) (Emphasis added). These cases all appear to stand for the proposition that a defense counsel's desire to informally interview a plaintiff's treating physician is not authorized by any statute or rule and therefore the courts do not involve themselves.

The decision in Anker has been limited over the course of time. In essence, the appellate divisions have held that there is no ethical or other legal prohibition against interviewing plaintiff's treating physicians in personal injury actions when the interviews occur after the note of issue has been filed (see Zimmerman v Jamaica Hosp., Inc., 143 AD2d 86 [2d Dept 1988]; Tiborsky v Martorella, 188 AD2d 795 [3d Dept 1992]; Levande v Dines, 153 AD2d 671 [2d Dept 1989]; Fraylich v Maimonides Hosp., 251 AD2d 251 [1st Dept 1998]). Nevertheless, none of these cases required a plaintiff to consent to the interviews.

HIPAA and the Privacy Rule

HIPAA was adopted in 1996 to improve the efficiency and effectiveness of the health care system. Congress incorporated into HIPAA provisions that mandated the adoption of federal privacy protections for individually identifiable health information. The Department of Health and Human Services ("HHS") implemented its Privacy Rule in 2002 which requires all "covered entities" to establish standards to guard against the misuse of individually identifiable health information (45 CFR part 160 and Subparts A and E of Part 164).

The Privacy Rule authorizes a covered entity that is not a party to a legal proceeding to disclose protected health information in response to a subpoena, discovery request, or other lawful process that is not accompanied by a court order. In that situation, the covered entity must receive a statement and accompanying documentation from the party seeking the information that reasonable efforts have been made either to ensure that the individual who is the subject of information has been notified of the request or to secure a qualified protective order for the information. Otherwise, the health care entity must itself make reasonable efforts to provide notice or to seek a qualified protective order (45 CFR 164.512 [e]). [*5]

The issue that has arisen since HIPAA's Privacy Rule was implemented involves the practical problem defense counsel are encountering in attempting to interview a plaintiff's treating physicians after a note of issue has been filed and in preparation for the potential trial testimony of such physicians. Specifically, it appears that treating physicians are requiring either written authorizations signed by the plaintiff which comply with HIPAA and which permit oral communications, or a court order authorizing such oral communications which likewise comply with HIPAA.

This practical problem for defense counsel has now engendered eight (8) published and unpublished decisions of which this Court is aware pertaining to how and under what terms defense counsel may gain access to treating physicians for interviews after the note of issue has been filed (see Beano v Post, Sup Ct, Queens County, March 12, 2004, Dollard, J., Index No. 5694/01; Keshecki v St. Vincent's Medical Ctr., 5 Misc 3d 539 [Sup Ct, Richmond County 2004]; O'Neil v Klass, Sup Ct, Kings County, October 29, 2004, Rosenberg, J., Index No. 3808/02; Browne v Horbar, 6 Misc 3d 780 [Sup Ct, New York County, 2004]; Steele v Clifton Springs Hosp., 6 Misc 3d 953 [Sup Ct, Monroe County 2005]; Smith v Rafalin, 6 Misc 3d 1041[A], 2005 NY Slip Op 50385[U] [2005] [Sup Ct, New York County 2005]; Valli v Viviani, 7 Misc 3d 1002[A], 2005 NY Slip Op 50409[U] [2005] [Sup Ct, Suffolk County 2005]; Hitchcock v Suddaby, Sup Ct, Erie County, May 11, 2005, Mintz, J., Index No. 219/02). These cases are from eight different Supreme Court Justices in seven (7) different counties. Each case tends to reach a slightly different result although six (6) of them appear to resolve in a similar way.

In Beano, Keshecki, O'Neil, Steele, Smith and Hitchcock, the learned Justices elected to grant orders sought by defense counsel seeking to require plaintiffs to execute HIPAA compliant authorizations to permit interviews of treating physicians. The only exception to this point is Keshecki which also granted a motion to preclude testimony from treating physicians who communicated with defense counsel allegedly in violation of the Privacy Rule. Each of the courts in those six decisions devised language for an authorization to be executed by the plaintiff and in some instances required the disclosure by defense counsel of statements, documents and recordings from the interviews.

Some of these decisions are founded on the premise that was articulated in Beano: It would appear to the court that implicit in that waiver (of the physician-patient privilege) is an obligation to provide an authorization to interview a treating physician or hospital employee who treated the plaintiff in which PHI (personal health information) may be disclosed.

Some of these justices also were concerned with the perceived unfairness to defense counsel as revealed in Smith: Fairness in providing equal access to the physicians militates in favor of permitting continuation of interviews by defense counsel.

The contrary views on this issue are in Browne and Valli. In Browne, the court denied the defendant's motion seeking a qualified protective order to communicate with [*6]plaintiff's treating physicians. The court perceived pre-HIPAA case law as providing for a policy of non-involvement in the interviews and that there is nothing in that case law which requires the court to "actively assist a party desirous of interviewing a treating physician." In essence, the court denied the motion "for the very simple reason that judicial participation in the informal interview process . . . would improperly permit medical malpractice defendants to obtain discovery after the note of issue has been filed without requiring adherence to the rules governing disclosure." On this basis, the court also suggested that the appropriate mechanism for interviews with treating physicians would be at examinations before trial during the discovery process.[FN2]

In Valli, the court came to a different conclusion by declining to follow

Keshecki on the grounds that: "It is for the Legislature to determine if an amendment to the CPLR is warranted to protect a plaintiff's health information. Until such time, the law in the Second Department is that post-note of issue interviews with treating physicians are proper." In essence, the court declined to require the plaintiff to execute an authorization for an interview because nothing under the law requires it and HIPAA does not otherwise change the pre-existing case law in New York.

Analysis

This Court takes its own view of the issue just as the other Justices did in the aforementioned cases. In fact, the variety of views by each Justice is a significant problem for all parties in personal injury actions because the rules of the game can change depending on the judge. Moreover, having each judge devise her or her own rules for authorizations will only invite further litigation as to the appropriate language of each authorization for each such Justice and whether the authorization as prepared by counsel matches what each Justice wanted. For these reasons, this Court is most closely aligned with the views expressed in Valli.

The analysis starts with the foundation that HIPAA did not create any substantive rights or remedies for plaintiffs. In fact, the Seventh Circuit has held that HIPAA did not create a federal physician-patient privilege and that the Privacy Rule is procedural in nature (Northwestern Memorial Hosp. v Ashcroft, 362 F3d 923, 926 [7th Cir 2004]). This point is further underscored by the fact that all the district courts that have addressed the issue have found that HIPAA does not create any private right of action. Instead, patients who perceive themselves aggrieved by non-compliance with HIPAA are relegated to filing a complaint pursuing an administrative process under HIPAA, thereby allowing the Secretary of HHS to pursue any rights or remedies on behalf of the patient (see e.g. Rigaud v Garofalo, 2005 US Dist LEXIS 7791 [ED PA May 2, 2005]; Johnson v Quander, 2005 US Dist LEXIS 5020 [DC DC March 21, 2005]).

Some of the other Justices who have decided this issue seem to infer that the Privacy Rule provides substantive rights for plaintiffs in New York litigation practice. For [*7]example, in Keshecki, the court observed that it would follow Beano by establishing protections "that would afford the patient with his or her HIPAA rights." On this basis, the Keshecki court also imposed a HIPAA-based remedy by granting the plaintiff's motion to preclude the testimony of two treating physicians. This Court finds nothing under New York law or HIPAA bestowing such rights or authorizing such a remedy.

Nevertheless, even if it were proper to conclude that the Privacy Rule does create some form of rights or remedies for plaintiffs in state litigation, this Court believes it proper to apply Koump to any such rights and remedies for the same reasons articulated by the Court of Appeals in that case. Thus, any rights or remedies which a plaintiff claims to possess under HIPAA in New York litigation must be deemed to have been waived in the context of that litigation just as the physician-patient privilege was deemed to have been waived in Koump.

The same reasons for construing a waiver of the physician-patient privilege that existed in Koump also exist here. A party who affirmatively asserts a mental or physical condition must eventually consent to a waiver of any HIPAA rights in order to prove his or her case. Moreover, to construe any HIPAA rights as a sword against defendants but as a shield for plaintiffs would have the same unfair result which the Court of Appeals guarded against in Koump. Accordingly, this Court holds that by bringing or defending a personal injury action in which a party's mental or physical condition is affirmatively raised, that party waives any rights or remedies under HIPAA as to the mental or physical conditions asserted in the litigation.

The waiver of any HIPAA rights as implicit in the waiver of the physician-patient privilege is more consistent with the principles of separation of powers and statutory construction than requiring plaintiffs to execute an authorization consenting to an interview to which they object and feel is unfair. This construction of a waiver of any HIPAA rights more closely adheres to the principles annunciated by the Court of Appeals in Koump and is therefore completely within established common law. Further, by adhering to the common law, the Court need not be concerned about creating legislation or regulatory schemes specifying the language of authorizations without the benefit of any guidance from the Legislature or the Uniform Rules. The parties to the litigation and non-party physicians also do not need to be concerned with whether plaintiff's counsel must be notified of or present at the interview, whether an authorization is properly worded as directed by the court, or whether attorney work product must be disclosed after the interview.

Perhaps most importantly, the construction of a waiver of any HIPAA rights fulfills the same purpose which Koump ultimately served by protecting defense counsel and treating physicians who participate in post-note of issue interviews. The practice has been for defense counsel, after the note of issue has been filed, to provide treating physicians either with an authorization for medical records executed by the plaintiff and/or with a subpoena for trial testimony. Apparently because the treating physicians could take comfort in the waiver of the physician-patient privilege, the physicians who were willing to meet with defense counsel did not require the plaintiff to execute a written authorization permitting the interview. This pre-HIPAA practice was premised solely on the waiver of the doctor-patient privilege rather than on any piece of paper such as a records authorization or trial subpoena.

Under this Court's approach, all parties can rely on the point that New York common law provides for a waiver of any rights or remedies under HIPAA. Accordingly, the [*8]waiver of any HIPAA rights for plaintiffs has the practical effect of assuring defense counsel that the state court will not impose any remedy for a purported violation of HIPAA, i.e., the type of preclusion that occurred in Keshecki. Additionally, treating physicians can be assured that HIPAA does not provide any private right of action for plaintiffs and, when faced with any administrative complaint by a plaintiff, the treating physician can point to New York common law which construes a waiver of HIPAA rights. This result also is consistent with pre-HIPAA New York law which, as noted above, disallowed any tort remedies for breach of confidentiality where the privilege has been waived.

Essentially, the construction of a waiver of any HIPAA rights puts all parties in the same position they were in before the Privacy Rule was adopted. The same case law which prohibited pre-note of issue interviews of treating physicians and refused to prohibit post-note of issue interviews still stands.

It may be that this conclusion does not adequately address the concerns of defense counsel. Rather, defense counsel may still be confronted by the practical problem that physicians may insist upon HIPAA-compliant authorizations or a court order before participating in interviews. However, this is a problem which was encountered in a similar way by defense counsel before the Privacy Rule was implemented because not all treating physicians would meet with them. The problem was overcome then through no statute or regulation requiring authorizations for oral interviews but apparently by reminding physicians that the physician-patient privilege had been waived and by providing physicians with a records authorization and/or trial subpoena. Given this Court's conclusion that any HIPAA rights are waived by plaintiffs, this practice need not change.

Through this conclusion, the Court maintains a wise policy of non-involvement in activities which are not formal disclosure authorized by the CPLR or the Uniform Rules. The courts should not become involved in post-note of issue trial preparation matters and should not dictate to plaintiffs or defense counsel the terms under which interviews with non-party witnesses may be conducted.

This Court is struck by the fact that there has never been anything under the CPLR or Uniform Rules requiring plaintiffs to execute an authorization permitting oral interviews of treating physicians after the note of issue has been filed. This is despite the fact that the debate over whether such interviews are appropriate, permissible or required has been ongoing for decades. Instead, the most the Legislature has authorized is a written authorization for hospital and medical records. This decision of the Legislature to provide for one type of authorization and not another cannot be overlooked. As the First Department articulated in D'Amico v Manufacturers Hanover Trust Co. (182 AD2d 462 [1st Dept 1992]), the usual statutory construction rule is founded upon the principle of "expressio unius est exclusio alterius" ("the expression of one thing is to the exclusion of another"). Thus, the courts should not construe a form of authorization where a more limited form of authorization has been specifically authorized by the Legislature.

In the absence of any statute or rule requiring plaintiffs to execute an authorization [*9]permitting oral interviews, this Court will not contrive such a rule, regulation or authorization.[FN3] This Court agrees with the court in Valli that: "such legislation on the part of the courts leads only to more confusion among litigators and doctors as to how any individual court will proceed." Thus, the guidance needs to come from the Legislature, the Uniform Rules, or an appellate court.

For all of the above reasons, the motions by the defendants are in all respects DENIED.

This Decision shall constitute the Order of the Court once it has been entered with the Clerk and served with Notice of Entry.

Dated: May 24, 2005_______________________________

HON. JOHN M. CURRAN, J.S.C.

GRANTED:

By:_____________________________

, Court Clerk Footnotes

Footnote 1: When referring to a "plaintiff" in this Decision, the word encompasses any party who affirmatively asserts a mental or physical condition.

Footnote 2: The same Justice who decided Browne has recently held that HIPAA is an unusual or unanticipated circumstance permitting a post-note of issue deposition of a non-party treating physician (Raynor v St. Vincent's Hospital [Sup Ct, New York County, NYLJ, May 17, 2005]).

Footnote 3: Strangely, the OCA-approved form for a HIPAA-compliant authorization has a provision which allows a plaintiff to check a box and complete information permitting a healthcare provider "to discuss my health information with my attorney." (Emphasis added). Thus, it appears that OCA has complicated this debate by issuing an approved form which authorizes oral communications with only one party's attorney despite the absence of any such language in the CPLR or the Uniform Rules. Undoubtedly, this OCA-approved form will become an even further source of angst for defense counsel who may perceive that there should be a provision in the form authorizing discussions with defense counsel.