Constantino v Cooper
Annotate this CaseDecided on May 15, 2006
Supreme Court, Nassau County
Coleen Constantino and John Constantino, Plaintiffs,
against
Joel Cooper, Priya Grewal, Jay N Yelon, North Shore University Hospital, and Brian E. Pinard, Defendants.
17468/03
Thomas Feinman, J.
The defendants, Priya Grewal, Jay Yelon, North Shore Hospital and Brain E. Pinard, (hereinafter referred to as "North Shore Hospital"), move for an order, pursuant to CPLR §3126(3), striking the complaint of the plaintiffs as and against North Shore Hospital, for failure to provide necessary HIPAA complaint authorizations, or, in the alternative, an order vacating plaintiff's note of issue, or, in the alternative, compelling the plaintiffs to provide outstanding discovery including HIPAA compliant authorizations to accompany subpoenas for medical records, and authorizations to conduct ex-parte interviews with the plaintiff's healthcare providers, or, in the alternative, an order compelling the production of authorizations to conduct ex parte interviews pursuant to 45 CFR 164 512(e), or an order permitting plaintiffs' treating physicians to engage in an ex-parte interview without an authorization, and for such other and further relief as this Court deems just and proper.
The defendant, Joel Cooper, cross-moves for the same relief and adopts various portions of the North Shore Hospital's moving affirmation. The plaintiffs submit opposition. The defendant, North Shore Hospital, submits a reply affirmation.
In this medical malpractice action, the defendants, by way of the instant application, seek an order compelling plaintiffs to provide the defendants with post-note of issue authorizations to conduct ex-parte interviews with the plaintiff's treating physicians.
Post-Note of Issue Authorizations to Conduct Ex-Parte Interviews
with Plaintiff's Treating Physicians and HIPAA
It is well-settled that a litigant waives the physician-patient privilege in bringing an action where the litigant has affirmatively placed his or her mental condition in issue. (Koump v. Smith, 25 NY2d 287; Dillenbeck v. Hess, 73 NY2d 278). It has been the practice in medical malpractice cases to permit defense counsel to interview plaintiff's treating physicians once the discovery phase of the case is complete. (Zimmerman v. Jamaica Hosp., Inc., 143 AD2d 86; Levande v. Dines, 153 AD2d 671).
Currently debated at the Trial Court level is whether the adoption of the Health Insurance Portability and Accountability Act of 1996, (HIPAA), has changed the landscape. Prior to the adoption of HIPAA, defendants were free to contact and speak with treating doctors after the note of issue was filed, and defendants could conduct private interviews after serving a trial subpoena to the treating physician. (Zimmerman v. Jamaica Hospital, Inc., 143 AD2d 86). A multitude of trial court decisions have found that HIPAA has not changed the defendants' ability to conduct post-note of issue ex-parte interviews of plaintiff's treating doctors. Judge Sklar, in Smith v. Rafalin, 6 Misc 3d 1041(A), Sup. Ct. New York, March 24, 2005, commented that Justice Lunn, in Steele v. Clifton Springs Hospital and Clinic, 6 Misc 3d 953, Sup. Ct. Monroe, Jan. 21, 2005, made a critical point in stating that the court is required to permit the continuation of ex-parte interviews of subsequent treaters by defense counsel until the appellate cases permitting them are overruled by binding appellate authority.
"It has long been the rule in New York that defense counsel may interview a plaintiff's non- party subsequent treating doctors after the discovery phase of litigation is completed". (Steele v. Clifton Springs Hospital and Clinic,, supra; citing Zimmerman v. Jamaica Hosp., Inc., 143 AD2d 86; Levande v. Dines, 153 AD2d 671; Tiborsky v. Martorella, 188 AD2d 795; Luce ex rel. Luce v. State, 266 AD2d 877.) Anker v. Brodnitz, 98 Misc 2d 148, which barred ex-parte interviews by defense counsel has been interpreted as limited to the pre-note of issue period. (Smith v. Rafalin, supra, citing Zimmerman v Jamaica Hosp., Inc., 143 AD2d 86.) Judge Sklar in Smith v. Rafalin, supra, stated that "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 plaintiff's counsel, or with the "problems" being so rare that they have never been brought to my attention." The Court stated that while it is debatable whether a private interview against the plaintiff's wishes with his or her treating physicians constitutes a "judicial or administrative proceeding" absent the express authority of the plaintiff, "in order to foster the truth seeking function of a trial and in order to ensure fundamental fairness and a level playing field, a plaintiff should not be allowed to simply refuse to provide an appropriate [*2]authorization to defendants yet seek to interview these same health care providers for potential trial testimony." (Id).
Language of the Authorizations
The Court in Steele v. Clifton Springs Hospital and Clinic, supra, stated that HIPAA does not impede defense counsels' ability to interview a plaintiff's doctor post-note of issue, and agreed with the conditions placed upon providing an authorization as set forth in Keshecki v. St. Vincent's Medical Center, 5 Misc 3d 539. Those conditions are as follows:
1. Defense counsel must obtain an authorization separate and apart from any other
authorization;
2. The authorization on its face should state in BOLD letters that the purpose of the
disclosure is not at the request of the patient, [the plaintiff]'
3. 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";
4. 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]);
5. The authorization must conform to all of the core element requirements of 45
CFR §164.508[c]; and
6. There shall be a separate authorization for each interview and the authorization shall
not be combined with a subpoena, which only acts to intimidate the doctor. (Id).
The Court in Smith v. Rafalin, supra, further modified the language contained in the authorization and stated that since Keshecki v. St. Vincent's Medical Center, the language should be as follows; that the authorization on its face should state in BOLD letters that the purpose of the disclosure is not at the request of the patient [plaintiff]; and that 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.
Justice Lally, in Fisher v. Schecter, Index No. 941/2003, June 1, 2005, Sup. Ct., Nassau County, agreed that all the standard notices set forth in Smith v. Rafalin, supra, should be given, including that the notice that these interviews that are not being sought at the request of the plaintiff. Justice Dunne, in Kogen v. Ragusa, Index No. 15475/2003, August 18, 2005, Sup.Ct. Nassau County, granted the defendants' request for authorization of the plaintiff's treating physicians for an ex-parte interview upon the condition that a notice to the doctor is prominently displayed that disclosure is not being sought at the request of the plaintiff, and that all the conditions in Keshecki v. St. Vincent's Medical Center, supra, be met. In Frier v. Mercy Medical Center, Index No. 6157/2003, October 24, 2005, Sup. Ct., Nassau County, Justice Joseph provided that in order to comply with HIPAA privacy rules, a defendant's counsel must provide [*3]the conditions outlined in Keshecki v. St. Vincent's Medical Center, supra. Justice Roberto, in Mannion v. Long Island Cardiology Associates, Index No. 9123/2002, October 6, 2005, Sup. Ct., Nassau County, directed that the authorization to be signed should contain the following conditions; that it must be separate from any prior authorization, cover no more than one interview, on its face clearly state in bold letters that the disclosure is not at the plaintiff's request; it should also state that the purpose of the interview is to aid the defendant in preparing a defense to a lawsuit brought by the plaintiff/patient; the authorization must contain the name and address of the person to whom the physician may give an interview, and identify the defendants that person represents, and otherwise comply with HIPAA (45 CFR 164.508[c]). The Court in Mannion v. Long Island Cardiology Associates, supra, added that a subpoena may not be served with the authorization, as the same may be coercive, citing Keshecki v. St. Vincent's Medical Center, supra.
Post-Interview Disclosure
As to post-interview disclosure, the court in Steele v. Clifton Springs Hospital and Clinic, supra agreed with Keshecki v. St. Vincent, supra, and held that any written statements obtained from the interviewed health care provider and memorandums, notes, audio or video taping, should be turned over to the plaintiff, yet fell short of requiring defense counsel to provide plaintiff with a written summary of their conversations with the treating physicians.
The Court in Smith v. Rafalin, supra, directed that defense counsel shall only be required to turn over any portion of the physician's records that may not have previously have been given to the parties, and declined to order that any memoranda or notes or recordings relating to the interview be turned over to plaintiff's counsel, as such created documents were privileged as attorney work product. (Smith v. Rafalin, supra citing Fraylich v. Mamonides Hospital, 251 AD2d 251; Corcoran v. Peat, Marwich, Mitchell & Co., 151 AD2d 443; and Manning v. Sikorsjyi, 204 AD2d 976).
The Court in Fisher v. Schecter, supra, agreed with Smith v. Rafalin, supra, and Justice Lally held that counsel for defendant will only be required to turn over any reports or records they receive from plaintiff's treating physicians which have not been previously provided to the parties, but shall not be required to turn over notes or other memorializations of such interviews. The Court in Kogen v. Ragusa, supra, required that any portion of the physician's records that may not previously have been provided to the parties, as well as any tape recording or transcript of the interview be turned over to plaintiff. However, Justice Dunn, in Kogen v. Ragusa, supra, held that notes or memoranda made by the interviewing attorney are not required to be turned over to plaintiff's attorney as they constitute work product. Justice Joseph, in Ackerman v. Karp, supra, required defense counsel to turn over only those physician's records that may not have previously been given to the parties, and denied plaintiff access to any memoranda or notes or recordings relating to the oral interview, on the grounds that any memoranda or notes or recordings relating to the oral interview are protected from discovery as an attorney's work product. [*4]
Approaches
Justice Sklar in Smith v. Rafalin, supra, stated that he agreed with his distinguished colleagues who have written on the issue that the use of HIPAA compliant authorizations is generally preferable to a subpoena or court order, however, in appropriate circumstances, the Court may issue an order.
On the other hand, the approach by some Trial Courts has been to deny motions to compel authorizations. Justice Molia, in Valli v. Viviani, 2005 WL 735873 (Sup.Ct. Suffolk Co., 2005), found that HIPAA does not preempt state law regarding ex parte interview. Justice Molia stated that the service of a trial subpoena could be challenged by the doctor being interviewed by a motion to quash, and under such circumstances, the Court could properly consider the testimony at trial and interview in preparation for trial. Justice Molia declined to follow the holding in Keshecki v. St. Vincent, supra, and commented that "such litigation on the party of the Courts only leads to more confusion among litigators and doctors as to how any individual court will proceed." The Court in Holzle v. Healthcare Services Group, Inc., 2005 WL 1252597 (Sup. Ct. Niagara, 2005) aligned with the views expressed in Valli v. Viviani, supra.
Recently, the Court in Ottinger v. Mausener, 2006 WL 777066, March 20, 2006, Sup.Ct. Nassau County, took a similar approach and also commented on the need for legislature to establish guidelines for a practice that prior to the enactment of HIPAA created little controversy. "Too much ink has been spilled by the trial courts on the subject already, and this Court is now asked to pour in some more." Justice Palmieri found that HIPAA changes nothing, and agrees with the other Trial Courts that have found that HIPAA did not preempt existing New York State Law regarding waiver of the physician-patient privilege. The Court stated that denying the motion is consistent with the notion that the Courts should not attempt to engraft their own provisions into the scheme provided in Article 31(disclosure device of CPLR), and that the question should be left to the Legislature as confusing and inconsistent decisions of the Trial Courts have evolved. Should the physicians not voluntarily speak with defense counsel, defense counsel may make use of a subpoena to compel their testimony. "This procedural route should be preferred because the Court can, in that context, address any concern any party or the physician might have." Should a motion to quash be denied, at this juncture, the Court can "fix conditions or modify" the subpoena to protect patient information that is irrelevant to the action. (Id).
Conclusion
This Court takes into consideration the well reasoned decisions of my distinguished brethren. It has long been the rule in New York that defense counsel may interview a plaintiff's subsequent treating doctor after the discovery phase of litigation. The enactment of HIPAA has not changed the defendant's ability to conduct post-note of issue private ex-parte interviews with the plaintiff's doctors. As demonstrated in the foregoing decisions, the approach at the Trial Court level has varied. However, at some procedural juncture, either by way of motion to [*5]compel authorizations, or by way of motion to quash subpoenas, the Trial Court will be called upon to place conditions on authorizations, notices or subpoenas. This Court agrees that while the use of HIPAA compliant authorizations is generally preferable to a subpoena or court order, under appropriate circumstances, the Court may issue an order.
In the instant application, this Court grants the request made by defense counsel for an order compelling plaintiffs to provide defense counsel with authorizations to conduct post-note of issue ex-parte interviews with the plaintiff's healthcare providers. The authorizations shall provide the following conditions:
1. The authorizations shall be separate from any prior authorization,
and cover no more than one interview;
2. The authorization on its face shall clearly state in BOLD letters that
the disclosure is not at the plaintiff's request;
3. The authorization shall also state in BOLD that the purpose of the
interview is to aid the defendant in preparing a defense to a lawsuit
brought by the plaintiff/patient;
4. The authorization must contain the name and address of the person
to whom the physician may give an interview, and identify the defendants
that person represents, and otherwise comply with HIPAA (45 CFR 164.508[c]);
5. A subpoena may not be served with the authorization.
Counsel for defendant will only be required to turn over any reports or records they receive from plaintiff's treating physicians which have not been previously provided to the parties.
Therefore, that branch of the defendants' motion and cross-motion seeking an order to compel the plaintiffs to provide defense counsel with authorizations to conduct ex-parte interviews with the plaintiff's healthcare providers is hereby granted.
That branch of the defendants' motion and cross-motion seeking HIPAA compliant authorizations to accompany subpoenas for medical records is denied as moot since the plaintiff has provided defendants with such authorizations. However, as to the authorizations which have not been provided, the plaintiff shall provide the defendants with outstanding authorizations.
Accordingly, it is hereby
ORDERED, that plaintiffs shall, within five days of the date of this order, provide defense counsel with authorizations as follows:
1. The authorizations shall be separate from any prior authorization,
and cover no more than one interview;
2. The authorization on its face shall clearly state in BOLD letters that [*6]
the disclosure is not at the plaintiff's request;
3. The authorization shall also state in BOLD that the purpose of the
interview is to aid the defendant in preparing a defense to a lawsuit
brought by the plaintiff/patient;
4. The authorization must contain the name and address of the person
to whom the physician may give an interview, and identify the defendants
that person represents, and otherwise comply with HIPAA (45 CFR 164.508[c]);
5. A subpoena may not be served with the authorization, and it is further
ORDERED, that defense counsel, within five business days of any interview, defense counsel shall turn over any portion of the physician's records that may not have been given to the parties, and it is further
ORDERED, that plaintiffs's counsel, within five business days of this order, shall provide the defendants with the following outstanding items, (a) an authorization to obtain tax returns from 2003 to 2005, whereby such authorizations shall have the requisite identification needed to process through the Internal Revenue Service, (b) an authorizations for plaintiff's employer, Woodmark, and (c) authorizations for records concerning disability, and an authorization for Blue Cross/ Blue Shield,
and it is further
ORDERED, that the further prosecution of this action is stayed for a period of thirty days from the date of this order in order to provide for its implementation.
E N T E R :
________________________________
J.S.C.
Dated: May 15, 2006
cc: Weitz, Kleinick & Weitz
Shaub, Ahmuty, Citrin & Spratt, LLP
Matturo & Associates
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