Ottinger v Mausner

[*1] Ottinger v Mausner 2006 NY Slip Op 50460(U) [11 Misc 3d 1070(A)] Decided on March 20, 2006 Supreme Court, Nassau County Palmieri, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2006
Supreme Court, Nassau County

Thomas W. Ottinger and KAREN A. PART II OTTINGER, Plaintiffs,

against

Daniel C. Mausner, M.D., and MARK J. KIRCHBLUM, M.D., LLP, DANIEL C. MAUSNER, M.D., MARK J. KIRCHBLUM, M.D., DEBORAH FLACH, N.P., C. JONATHAN YORK, M.D., and MERCY MEDICAL CENTER, Defendants.



1527/04



Silberstein, Awad and Miklos, P.C.

Attorneys for Plaintiffs

600 Old Country Road

Garden City, NY 11530

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

Attorneys for Defendants Daniel C. Mausner, M.D.

and Mark J. Kirchblum, M.D., LLP, and Daniel C. Mausner, M.D.

150 East 42nd Street

New York, New York 10017

Geisler & Gabriele, LLP

Attorneys for Deborah Flach, N.P.

100 Quentin Roosevelt Blvd., P.O. Box 8022

Garden City, New York 11530

Bower, Sanger & Lawrence, P.C.

Attorneys for Jonathan York, M.D. and Mercy Medical Center

261 Madison Avenue

New York, New York 10016

Daniel Palmieri, J.

Upon the foregoing papers it is ordered that this motion by defendants Daniel C. Mausner, M.D. and Mark J. Kirchblum, M.D., LLP, and Daniel C. Mausner, M.D. (motion seq. No. 1), motion by defendants Jonathan York, M.D. and Mercy Medical Center (seq. # 2) and cross motion by [*2]defendant Deborah Flach, N.P. (seq. # 3) for an order directing the plaintiff Thomas W. Ottinger to provide authorizations for defendants to conduct ex parte interviews with two non-party physicians who rendered care and treatment to the plaintiff, or, in the alternative, if such authorizations are not provided within five days of such an order, allowing them to conduct such interviews without the need for such authorizations, are in all respects denied.

The present applications in this medical malpractice action constitute further evidence of the need for the Legislature to establish guidelines for a practice that had created little controversy before the 1996 enactment of the federal Health Insurance Portability and Accountability Act ("HIPAA") the informal interview of the plaintiff's treating physicians by defendant's counsel after the note of issue has been filed. Too much ink has been spilled by the trial courts on the subject already, and this Court is now asked to pour in yet more.

The development of the law is illuminating. It had been well-established that, absent the plaintiff's consent or a court order, the defense was precluded from making use of unauthorized private interviews with the plaintiffs' treating physicians conducted during the pretrial discovery phase of a medical malpractice action (Anker v Brodnitz, 98 Misc 2d 148 [1979], affd 73 AD2d 589 [1979]; Feretich v Parsons Hosp., 88 AD2d 903 [1982]).

As was noted by Justice Curran in deciding one of the many motions addressing the present controversy, this law did not rest on anything beyond adherence to the disclosure provisions contained in the Civil Practice Law and Rules (Holze v Healthcare Servs. Group, Inc., 7 Misc 3d 1027(A) [2005]). Justice Curran pointed out that in Feretich the Appellate Division, Second Department had made it clear that its affirmance of Anker rested not on the physician-patient privilege (which that Court noted generally is waived when the plaintiff brings an action placing his medical condition and treatment in issue [see Koump v Smith, 25 NY2d 287, 294 (1969)]), but rather on the notion that the defendants must be limited by the design of CPLR article 31, as it provides the specific devices that should be utilized (Feretich v Parsons Hosp., 88 AD2d 903 [1982], supra, at 904; see also, Cwick v City of Rochester, 54 AD2d 1078 [1976] (discovery limited to what is obtainable by rule, statute or express consent)).

However, a few years later, the Appellate Division, Second Department decided Zimmerman v Jamaica Hosp., 143 AD2d 86 [1988], lv denied 73 NY2d 702 [1988]). This case held that the testimony of a treating non-party physician was properly allowed at trial notwithstanding the rule announced in Anker, as that testimony apparently was not elicited as a result of an unauthorized interview conducted during the pre-note of issue, discovery phase of the case (Id., at 88). In so holding, the Court referred to the "sanctity of the physician-patient privilege during the discovery phase of a medical malpractice action (see, CPLR 4504) " as the rationale of the Anker rule barring the treating physician interview. This can be reconciled with its earlier explanation in Feretich only by the Court's citation to CPLR 4504, the provision establishing the physician-patient privilege as a matter of statute; in effect, the Second Department appeared to indicate that CPLR 4504 trumps article 31 during the discovery phase, because the latter did not provide for such informal contact with [*3]the physician during that period.

In any event, because Zimmerman clearly limited the application of the "informal interview" injunction to the pre-note of issue, discovery phase of the suit, the case became the foundation for allowing these informal interviews after the note of issue was filed and the discovery phase had been completed (see Levande v Dines, 153 AD2d 671, 672 [1989]; Fraylich v Maimonides Hosp., 251 AD2d 251 [1998]).

Even before the advent of HIPAA and its protection of patient health information, however, it appears to this Court that these interviews were fraught with peril. Although clearly endorsed, or at least permitted, by the appellate courts, they fell outside the parameters of an orderly and controlled investigation into the plaintiff's relevant care and treatment by the physician being interviewed. It left open the possibility that a health care professional, speaking alone with adversary counsel, might be induced to reveal information that was beyond the scope of the medical issues at hand. While the plaintiff certainly waived the physician-patient privilege with regard to his or her claims as set forth in a complaint and bill of particulars (Koump v Smith, 25 NY2d 287, 294 [1969], supra), that waiver would not ipso facto open up every aspect of the patient's medical history for investigation, no matter how remote from the claims made in the law suit.

The Court finds that HIPAA changes nothing discussed above. It agrees with those other trial courts that have found that HIPAA did not preempt existing New York State law regarding waiver of the physician-patient privilege (see, e.g., Steele v Clifton Springs Hosp. and Clinic, 6 Misc 3d 953 [2005]; Valli v Viviani, 7 Misc 3d 1002(A) [2005]; Holze v Healthcare Servs. Group, Inc., 7 Misc 3d 1027(A) [2005], supra). This essentially leaves the trial courts and the Bar in the same position they occupied beforehand; "[t]he same case law which prohibited pre-note of issue interviews of treating physicians and refused to prohibit post-note of issue interviews still stands" (Holze, at 20-21).

As did Justice Curran, this Court also finds that this state of affairs militates against granting the relief sought by the defendants on these applications, because they call for a direction outside the scope of the discovery authorized by the CPLR or the Uniform Rules. Indeed, CPLR 3124 refers to a motion to compel disclosure where a person fails to respond to a "request, notice, interrogatory, demand, question or order under this article" (emphasis supplied). The interviews sought are simply not covered by article 31 or the allied rules.

Denying the motions and cross motion is consistent with the notion advanced by the Appellate Division in Feretich v Parsons Hosp., 88 AD2d 903 [1982], supra, that the courts should not attempt to engraft their own provisions onto the scheme provided in article 31. That is properly a question for the Legislature, as the confusing and inconsistent decisions of the trial courts on the present subject make clear. At the moment, the only article 31 provision that deals with the litigants' contact with treating physicians after the note of issue has been filed has to do with a formal deposition . In such a case, it is only the party wishing to depose his own physician that is not faced with the difficulty of justifying such a deposition (CPLR 3101(d)(1)(iii)), as the courts do not consider this to be "discovery" at all [*4](Brandes v North Shore Univ. Hosp., 22 AD3d 777; 22 AD3d 779 [2005]; compare, Attinello v DeFilippis, 22 AD3d 514, 515 [2005] [defendants did not show entitlement to testimony of treating health care professionals under CPLR 3101(d)(1)(iii)]).

Although the Court therefore declines to place its imprimatur on defendants' contemplated acts, it wishes to be clear that this decision should not be used to preclude testimony obtained under Zimmerman. As noted above, the law in this Judicial Department still permits the fruit of such an interview to be utilized at trial.

If the defendants believe they have sufficient cause to question treating physicians as a matter of trial preparation, and the physicians will not voluntarily speak to their attorneys, they can make use of a subpoena to compel their testimony. Such a demand can then be met with a motion pursuant to CPLR 2304. This procedural route should be preferred because the Court can, in that context, address any concern any party or the physician might have. Further, even if a motion to quash is denied, the Court can "fix conditions or modify" the subpoena to protect patient information that is irrelevant to the action, and thus is not subject to the waiver described by Koump and its progeny.

This shall constitute the Decision and Order of this Court

E N T E R

DATED: March 20, 2006

HON. DANIEL PALMIERI

Acting Supreme Court Justice

TO: