Hudler v Reddy
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Hudler v Reddy 2012 NY Slip Op 32140(U) July 17, 2012 Sup Ct, Nassau County Docket Number: 958/07 Judge: Roy S. Mahon Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. ROY S. MAHON Justice TRIALIIAS PART 5 ROBIN HUDLER, INDEX NO. 9587/07 Plaintiff(s), MOTION SEQUENCE - against - NO. 13 & 14 DEVI REDDY , MD , LONG BEACH MEDICAL CENTER and MERCY MEDICAL CENTER MOTION SUBMISSION DATE: May 14 , 2012 Defendant(s). The following papers read on this motion: Notice of Motion Notice of Cross Motion Affirmation in Opposition Reply Affirmation Upon the foregoing papers the motion by the defendant Mercy Medical Center for an Order compelling plaintiff to provide " Arons " authorizations enabling defendant to conduct ex parte interviews of Ashitbhar Kothari , MD , Ashok Bhatt , MD and Chitra Shenoy, MD; for costs and sanctions pursuant to 22 NYCRR 130- 1 and the cross motion by the defendant Long Beach Medical Center for an Order compelling plaintiff to provide "Arons " authorizations enabling defendant to conduct ex parte interviews of Ashitbhar Kothari , MD , Ashok Bhatt , MD and Chitra Shenoy, MD , are both determined as hereinafter provided: The Court initially observes that the plaintiff filed a note of issue on October 21 , 2011 and that the trial of this action has been stayed by Order of this Court. The respective moving defendants seek the respective requested relief in relation to the objection of the plaintiff to provide "Arons " authorizations pursuant to the holding of the Court in Arons v Jutkowitz 9 NY3d 393 850 NYS2d 345 880 NE2d 831. Often referenced, the Court therein set forth: We see no reason why a nonparty treating physician should be less available for an off- the-record interview than the corporate employees in Niesig or the As an initial matter , a litigant is deemed to have waived the (physician- patient) privilege when , in bringing former corporate executive in Siebert. or defendant a personal injury action , that person has affirmatively placed his :" [* 2] or her mental or physical condition in issue (Dilenbeck v Hess, 287, 294(1969); 287(189), citing Koump v Smith 25 NY2d NY2d 278, see also Hoenig 73 (physician-patient privilege waived by This waiver is called for as a matter of basic fairness: " (A) party should not be permitted to affirmatively assert a medical condition in seeking damages or in defendant against liabilty v Westphal 52 (1981) NY2d 605 commencement of personal injury lawsuit)) while simultaneously relying on the confidential physician- patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to s claim: (Dillenbeck at 287). disputing the party Plaintiffs counter that informal interviews of treating physicians are nonetheless impermissible because article 31 of the CPLR and part 202 of the Uniform Rules do not identify them as a disclosure tool. But there are no statutes and no rules expressly authorizing-or forbidding-ex parte discussions Niesig and the former Attorneys have always sought to talk with non parties who are potential witness as part of their trial preparation. Article 31 does not ' close off' these " avenues of informal discovery , and relegate with any nonparty, including the corporate employees in corporate executive in Siebert. litigants to the costlier and more cumbersome formal discovery devices (Niesig, 76 NY2d at 372). As the dissenting Justices pointed out in Kish choking off informal contacts between attorneys and treating physicians invites the further unwelcome consequence of " significantly interfering with the practice of medicine (i)nstead of communicating with an attorney during a 10-minute telephone call , a physician could be required to attend a fourhour deposition or to provide a time-consuming response to detailed and lengthy interrogatories (Kish v Graham 40 AD3d 118, 129 (4th Dept. , 2007 Pine, J. , dissenting)). Plaintiff also complain that in a more casual setting and without opposing counsel present , a physician might unwittingly divulge medical information as to which the privilege had not been waived , or might be gulled into making an improper disclosure. This is the same ' danger of overreaching " that we rejected explicitly in and implicitly in Niesig Siebert finding it to afford no basis for relinquishing the considerable advantages of informal discovery. Again , we " assume that attorneys would make their identify and interest ). known to interviewees and comport themselves ethically (Niesig, 76 NY2d at 376). I Siebert where the executive was privy to information for which the attorney-client privilege had not been waived , we considered the risk of improper disclosure adequately addressed where the attorney conducting the interview prefaced his questioning with admonitions designed to prevent this from happening, and there was no reason to believe that privileged information had , in fact , been disclosed. Here, the danger that the questioning might encroach upon privileged matter is surely no greater than Siebert since the subject matter of the interview or discussion was the case in - a patient' s contested medical condition - will be readily definable and understood by a physician or other health care professional. In sum , an attorney who approaches a nonparty treating physician (or other health care professional) must simply reveal the client' s identify and interest , and make clear that any discussion with counsel is entirely voluntary and limited in [* 3] scope to the particular medical condition at issue in the litigation. Finally, we understand that , in fact , for many years trial attorneys in New York have engaged in the practice of interviewing an adverse party s physicians ex parte , note of issue was filed 73 op below AD2d 589 1979), (2d Dept. NY, 80 Brevetti v Roth 1979); Young Jun 118 1981); 1981); Feretich v Parsons Hosp. v Jamaica Hosp. 143 AD2d 86(2d Dept Fraylich v Maimonides Hosp. New York 266 114 AD2d 73 743 AD2d 601 1985); Stoller v Moo Reid v Health Ins. Plan of Greater Breen v Leonard Hosp. , 821000 (3d Dept AD2d 877(2d Dept 88 AD2d 903(2d Dept 1988); Tiborsky v Martorella 1989); NY2d 703, 51 1986); AD2d 637(2d Dept AD2d 830 (2d Dept 671(2d Dept Iv dismissed Med. Ctr. of Brooklyn (1980); see also Vogel v Jewish Hosp. (2d Dept treating particularly in malpractice actions , although only after a 148(1979), (see Anker v Broadnitz 98 Misc2d affd on 877 Chipping Away at "Anker " 251 AD2d (4th Dept Doctrine, 251 188 Zimmerman Levande v Dines 153 AD2d 1982); AD2d (1st Dept 1999); 795 (3d Dept 1992); 1998); Luce v State of Klapper, NYLJ, Sept. Outside Counsel , 1996 at I, col I (discussing cases); Connors New York Practice , Appellate Division is 2007, at col (same)). Confronted with HIPAA, NYLJ, Jan described by practitioners , :defense counsel would usually serve the doctor with a trial subpoena or an authorization for medical records , attempt to speak with the doctor , and hope that the doctor would cooperate , although " treating doctors have generally been disinclined to cooperate with attorneys for either side in malpractice actions (Moore and Gaier, Medical Malpractice, Recent Cases on Ex Parte Interviews with Treating Physicians, NYLJ, October 4 2005, at 1). The effort was seen as worth making because pretrial col (Moore interviews are " essential in procuring the doctors ' assistance at trial" , Liability for Breach of Confidentialiy Part 2 and Gaier, Medical Malpractice NYLJ, Dec. 2006, at coI1). We mention this long-standing practice for several reasons. First , the prohibition of interviews in lieu of article 31 discovery devices originated in the a medical malpractice action handed down Dilenbeck, Hoenig, before - and at decided odds with our reasoning in Niesig and Siebert. Second , it bears emphasizing that the filing of a note of trial court' s decision in Anker, issue denotes the completion of discovery, not the occasion to launch another phase of it. While interviews may still take place post note of issue , at that juncture in the litigation there is no longer any basis for judicial intervention further pretrial proceedings absent " unusual circumstances " and :substantial prejudice to allow " (22 or NYCRR 202. 21(d)). unanticipated As a result , if a treating physician refuses to talk with an attorney and the note of issue has already been filed, it would normally be too late to seek the physician s deposition or interrogatories as an alternative. Finally, as one commentator put it and as these appeals ilustrate, the prevailing " state of affairs " in New York was thrown into considerable confusion " when the 800pound gorila , also known as HIPAA. . . entered the arena (Connors, supra), We now turn our attention to this statute. In the appeals now before us , defendants forwarded to plaintiff HIPAA- [* 4] compliant authorizations permitting their treating physicians to discuss the medical condition at issue in the litigation with defense counsel. After plaintiffs declined to sign these authorizations , defendants asked the trial courts for orders compelling them to do so , and the court granted these requests. This was entirely proper. Plaintiffs waived the physician- patient privilege as to this information when they brought suit , so there was no basis fortheir refusal to furnish the requested HIPAA-complaint authorizations. The waiver does not depend on the form or medium in which relevant medical information is kept or may be found: information does not fall outside the waiver merely because it is captured n the treating physician s memory rather than on paper (see generally 65 Fed Reg 82462 82620 (explaining rationale for treating verbal communications the same as paper and electronically based information)). Of course , it bears repeating that the treating physician s remain entirely free to decide whether or not to cooperate with defense counsel HIPAA-complaint authorizations and HIPAA court orders cannot force a health care professional to communicate with anyone; they merely signal compliance with HIPAA and the Privacy Rule as is required before any use or disclosure of protected health information may take place. included stipulations not Siebert - specifically a direction for defense counsel to hand over to his adversary copies of aU written statements and notations obtained from the physician during the Finally, the trial court orders in required by Arons HIPAA and inconsistent with and Webb Niesig and private interviews , any audio or video recordings or transcripts , and interview memoranda or notes (excluding the attorneys ' observations , impressions or analyses). Imposition of these conditions was improper. see Arons v Jutkowitz , supra at 409-411; 415-416 The plaintiff premises the plaintiffs objection upon two grounds: that the holding of the Court in Arons v Jutkowitz , supra , was " to save the parties and - more importantly - the non- party treating doctors time and trouble , so as to avoid significantly interfering with the practice of medicine . In this regard , the plaintiff sets forth that the plaintiff served the respective physicians whom the defendants seek "Arons authorizations for: Ashitbhar Kothari , MD; Ashok Bhatt , MD and Chitra Shenoy, MD with non- party deposition notices; that depositions of the aforementioned physicians were conducted and that counsel for the respective defendants , including the movants herein declined to ask questions thus obviating the need for the "Arons " authorizations since the respective defendants by the non- inquiry at that time in effect waived their Court awarded right to "Arons " authorizations. This Court does not read the referenced sections of Arons v Jutkowitz , supra , in the restricted manner as envisioned by the plaintiff since the Court in Arons v Jutkowitz , supra was addressing the issue of trial preparation by a defendant rather than the concern of the time taken by a non- party to be deposed. If the sole purpose of the Arons v Jutkowitz Court was , as the plaintiff suggests to save the "time and trouble " of the plaintiffs treating physicians , then the Court therein would have circumscribed the non- party deposition or the use of "Arons " authorizations. Clearly in both instances the Court did not do this. The Court further notes that under the circumstances of the instant action the three respective non- party treating physicians are free to reject the interviews allowed by the authorizations. Plaintiff also premises the plaintiffs opposition upon the contention that Drs. Kothari , Bhatt and Shenoy are not treating physicians of the plaintiff. The Court notes that Drs. Bhatt and Shenoy were the two physicians who signed the " " in relation to the plaintiff and that Dr. Kothari prescribed medication [* 5] for the plaintiff upon her admission to the defendant Mercy Medical Center. If this Court were to accept the plaintiffs contention then the Court would be at a loss to understand why the plaintiff choose to subpoena these individual physicians for non- party depositions. Clearly by the plaintiffs own reasoning as to the holding of the Court in Arons v Jutkowitz , this would create more " time and trouble " for these health care providers. Based upon all of the foregoing, that branch of the defendant Mercy Medical Center s application for an Order compelling plaintiff to provide "Arons " authorizations enabling defendant to conduct ex parte interviews of Ashitbhar Kothari , MD , Ashok Bhatt , MD and Chitra Shenoy, MD and that portion of the defendant Long Beach Medical Center s motion which seek an Order compelling plaintiff to provide " Arons authorizations enabling defendant to conduct ex parte interviews of Ashitbhar Kothari , MD , Ashok Bhatt , MD granted and Chitra Shenoy, MD , are both The plaintiff shall provide the requested authorizations within 30 days of the date of this Order. That branch of the defendant Mercy Medical Center s motion which seeks an Order for costs and sanctions pursuant to 22 NYCRR 130- , is denied SO ORDERED. DATED '7!1/:h I 1- iS:C.. ENTFRFD JUL 19 2012 "A..A.- CVUH' 1 COUNTY CLERK" OF"CE
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