Roshkind v St. Luke's Roosevelt Hosp.

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Roshkind v St. Luke's Roosevelt Hosp. 2007 NY Slip Op 34604(U) June 7, 2007 Supreme Court, New York County Docket Number: 113158/04 Judge: Sheila Abdus-Salaam Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART HON. SHEILA ABDUS-SALAAM Justice INDEX NO. _ 13 _..;1:....:1.:.3~15=8::;.i..;/0:;...4:..-- Dorothy Rosh kind, as Administrator of the Estate of Melyvn Roshkind - MOTION D A T E - - - - -v • MOTION SEQ. NO. St. Luke's Roosevelt Hospital and Continuum Health Partners, Inc. MOTION CAL. NO. - - - - - - p -z........ The following papers, numbered 1 to _ _ were read on this motion to/for _ __...___..,___ __ t i) 0 WU) Ca Notice of Motion/ Order to Shaw Cause - Affidavits - Exhibits... ~~W'\.:i..-......L.--~:..- g~ Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - .....~......,__ _ __ Cl) (.') Replying Affidavits I- ::::> """") 0:: - z o~ 1-0 0 ..J w ..J o:O a: "ww u.. :c IX ix: Cross-Motion: .__ . . Yes [ · No It is ordered that plaintiff provide HIPAA compliant authorizations that permit defense counsel to conduct post-note of issue ex parte interviews Wfi- >o ...I LL ..J ::::> L1. .... 0 w . with plaintiff's treating physicians within 30 days of service of a copy of this order with notice of entry . This court has previously ruled that such post note interviews are 0.. 0 permitted (.u.g Vrettos v. Friedman, March 31, 2005, Index No. 10977/03; a: Perrv v. The Mount Sinai Medical Center, February 16. 2005, Index No. w 122908/01 ) . In reaching this conclusion t relied in part upon the Second c( Department's decisions in Levande v. Dines (153 AD2d 671 (1989) and w sa 0 0 ~ Zimmerman v. Jamaica Hosp .• U43 AD2d 86 (1988), Iv denied 73 NY2d $ 702 (19881), the Third Department's decision in Tiborsky v. Martorella :& (188 AD2d 795 (1992)) and the First Department's agreement with those decisions expressed in Fraylicb v. Maimonides Hospital, 251 AD2d 251 [* 2] {1998)). In Fraylich, id., the court stated that "[w)e are in accord with the Second and Third Departments that the prohibition against the defendant in a medical malpractice action interviewing the plaintiff's treating physicians without a court order or the plaintiffs consent is limited to the pretrial stage." Implicit in this statement is that such an jnterview is not part of the discovery stage of the litigation, but is a type of trial preparation done postnote of issue. In Ar~ns v. Jutkowitz (37 AD3d 94 [2006)), a decision which was issued after my decisions in Vrettos, suora, and Perry. supra, the Second Department retreated from the position taken in Zimmerman, supra and Levande, supra, by holding that Article 31 of the CPLR does not authorize private. ex parte interviews as a disclosure device, and that " ... compulsion of such unsupervised private and unrecorded interviews plainly exceeds the ambit of article 31. " (37 AD3d p. 100). The Arons court did not outright reject Zimmerman and Levande, but attempted to explain that those decisions do not stand for the proposition for which they are often cited by stating that in those cases, " ... we did not declare that defense counsel have a right to such informal, post-note of issue interviews, nor did we require plaintiffs to consent to them. Rather, we merely held, under the circumstances, that the treating physician's unique and highly relevant testimony would not be precluded (citations omitted)/' (37 A03d p. 97). But this statement is semantics - if a court declares that a post-note of issue interview is not prohibited, doesn't it stand to reason that the interview is permitted? It is evident that in those previous decisions, the court did not consider these post..note interviews to be a disclosure device, and thus there was no prohibition, which would have been the case if defendant were attempting to conduct pretrial discovery after the filing of the note of issue without a showing of" " unusual or unanticipated circumstances" -2- [* 3] (22 NYCRR I 2.02.21 ldl)." (Amill. !Ullllll· p. 100). Yet, in Arons, the Second Deportment hos now reached D dlff erent conclusion and declared that those lt1terv1ewa are In the nature of discovery and that there is no provision for thla discovery In CPLR Article 31 . 1 In KJJ.h.~. GrnhomJ833 NYS2d 313. 2007 NY Slip Op 02376), the majority opinion of the Third Department (In a 3·2 decision) agreed with the Arons court a1ld characterized the Interviews as a type of Informal disclosure that is not available under Article 31. In contrast, the dissent concluded that " .... post-note of Issue interviews of fact witnesses, whether physicians or lay witnesses, constitute trlal preparation rather than discovery" (833 NVS2d p. 320) and held that a plaintiff la obligated to provide defense counsel with authorlzatlo"s to conduct ex parte post-note of issue interviews with treating physicians. As was aptly noted by the dissent in Kilb.. suora: We agree with the Second Department and the majority in this case that such Interviews ere not covered under the CPLR article 31 discovery provisions, but we note that CPLR article 31 does not authorize trial preparation Interviews with any nonparty witnesses. Thus, the fact that CPLR article 31 does not authorize such Interviews Is Irrelevant to the Issue here, i.e., whether interviews of nonparty fact witnesses are permissible In preparation for trial. It is beyond question that a defense attorney may interview an eyewitness to a motor vehicle collision in preparation for trial without resorting to CPLR article 31 discovery devices. While physicians are, Indeed, different because of their obligation to protect the confldentlallty of their communications with patients, we perceive no basis to treat the witnesses differently from other fact witnesses once the plalntlff waives the physician-patient privilege." [833 NYS2d p. 3201 1 The Arons approach was subsequently followed by the Second Department in Webb v. New Xork Methodist Hospital (35 AD3d 457 [2006]) .The Second Department granted leave to appeal Arons to the Court of Appeals by order dated March 8, 2007 {2007 NY Slip Op 6 4 '7 2 3 { U) ) . -3- _J [* 4] As for the matter of requiring plaintiffs to consent to the interviews, it is clear to thls court from a practical standpoint that given the provisions of HIPAA, physicians will not speak to defense counsel without an authorization from the patient, for fear of violating HIPAA. Thus_ if defense counsel are permitted under the law to interview the treating physicians, plaintiffs must be ordered to suJ>Py authorizations for this to happen. In Holz le v. Healthcare Services Group. Inc., (7 Misc. 3d 1072 (A) (2005]), Justice Curran of Supreme Court, Niagara County held that post-note of issue interviews are permitted but declined to become involved in the process by requiring plaintiffs to execute an authorization, noting that there is no statute or rule requiring plaintiffs to execute an authorization permitting interviews. But courts are often called upon to rule on issues regarding authorizations for among other things. school records, employment records and tax returns, where defendants are demanding authorizations for records and plaintiffs are resisting, claiming that the demands are overbroad, irrelevant_ a fishing expedition, etc. There is no court rule or statute requiring plaintiffs to execute authorizations for these records, and yet, where approp~te, courts order plaintiffs to supply these authorizations as a matter of course because defendants would otherwise be unable to obtain the records. In Holzle. suora, Justice Curran reasoned that the court must not become involved because physicians should know that New York common law construes a waiver of HIPAA rights where a plaintiff in a personal injury action has put his/her physical. condition in issue and that physicians shou~d accordingly understand that they are not breaching confidentiality by talking to defense counsel. But Justice Curran's view that the law should be clear to physicians (or to litigants or their counsel for that matter) and that authorizations just aren't necessary, is belled by the volume of decisional law on the issue of whether plaintiffs can be compelled to execute authorizations so that these ex parte -4- [* 5] l intentiews may be conducted. 2 J believe that in this circumstance, where defendants cannot obtain an interview without an authorization from plaintiff, directing plaintiff to 1Uppfy an authorization 1hat includes language informing the physician that the interview is not at the request of p&a81tif f, but at .the request o1 defendant, and that it is tD assist the defendant in defense of the lawsuit, is appropriate coort intervention. fraylich, supra, is still controling in this Department because the First Depatb1M!fft stated that it was "'in accord_. with Zimmerman, supra, and we cannot tel at this juncture whether the First Departmen1 would f olow Arons or adhere to Frayfich and agree with the dissenting opinion in Kish, suP!a. G;ven that Frayfich remains the law in this Department and the appeal of Arons is sub iudice, it is ORDERED that any privilege regard"mg healthcare and treatment for plain tiff's medical condi1ion relating to the treatment and injuries claimed in this case has been waived by putting ptaintiff' s medical condition at issue in this lawsuit., and since this action is now on the trial calendar, AJexander Chen, M .0., may,, IF HE WISHES TO 00 SO, c:f'ISCUS9 ptaintiff's medical condition with counsel for defendants with the knowledge and understanding that THE PURPOSE OF THE INFORMATION IS TO ASSIST THE DEFENDANTS IN THE DEFENSE OF A LAWSUIT BROUGHT BY THE PLAINTIFF; and it is further ORDERED that defense. counset obtain an authorization separate and apart from any o1her authorization and that the authorization state on its face in BOLD letters that the purpose of the interview is to assist defendants in defense of a lawsuit brought by plaintiff and that this interview is not at the request of plaintiff; and it is further ORDERED that the authorization must contain the name and address of the person to whom the health care provider or hospital employee may give an See, for example, the lower court decisions menti~ned in Arons (31 AD3d p .. 99) . -s·--·-·-------------------- - ____j [* 6] interview and identify the persons or entities the interviewer is representing (see 45 CFR § 164.508 [cl [iii] and that the authorization conform to the requirements of 46 CFR § 164.508 [c]; and it is further ORDERED that the authorization shall not be combined with a subpoena; and it is further ORDERED that defendants serve a copy of this order together with plaintiff's authorization upon Alexander Chen, M.D. Finally, I have not ordered that defense counsel provide plaintiff with copies of any written materials. notations or recordings obtained at the interview, es· 1 believe that such material is privileged as attorney work product (see Fraylich, suora). Dated: _tz_/_1_/D_7__ J.S.C. SHEILA ABDUS-SAUAM Check one: FINAL DISPOSITION Check if appropriate: .... : DO NOT POST -6- L X NON-FINAL DISPOSITION ! REFERENCE 1

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