BILL NUMBER: S6194

SPONSOR: PARKER
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to enacting the "patient privacy protection act"

 
PURPOSE OF BILL:

To prohibit in a personal injury, medical, dental or podiatric malprac-
tice or wrongful death action the defendant from conducting ex parte
interviews with the plaintiffs non-party treating physicians.

 
SUMMARY OF PROVISIONS:

This bill prohibits, in any action involving personal injury, medical,
dental or podiatric malpractice, or wrongful death, a party from
conducting ex parte interviews with an adverse party's treating physi-
cians. This bill also clarifies that an attorney or the agent or employ-
ee of an attorney who represents the patient, the estate of the patient,
or the natural or duly appointed guardian of the patient whose condition
is at issue in the action may conduct ex parte conversations with a
              

treating physician or other health care provider of the patient.

 
JUSTIFICATION:

This legislation has become necessary because of the interplay between
the Federal Health Insurance Portability and Accountability Act of 1996
(42 use Section 1320(d) et seq.) commonly referred to as HIPAA and the
defense bar's practice of privately interviewing plaintiffs' non-party
treating physicians, sometimes even after a note of issue has been
filed.

Frequently in actions involving personal injury, medical malpractice and
wrongful death defense counsel have requested that plaintiff execute
authorizations which would, pursuant to HIPAA, have permitted them after
the filing of the note of issue to informally and privately interview
non-party treating physicians who rendered care to the plaintiff or
decedent, as the case may be, related to the action. Plaintiffs who
believe that such interviews are either unwarranted or not authorized by
law have often declined to execute such authorizations and this has
created a great deal of legal and judicial comment about the efficacy of
these post-note of issue requests for discovery.

It has never been in much question that a plaintiff in a personal injury
or medical malpractice action waives the physician-patient privilege
with respect to those physical or mental conditions whiCh he or she has
placed in issue in the lawsuit. Defendants in such actions have a right
to disclosure regarding the relevant medical conditions in issue and
they may utilize any of the disclosure devices set forth in CPLR Article
31 to obtain such disclosure.  However, CPLR Article 31 does not inClude
a provision authorizing defense counsel on behalf of his or her client
to meet privately with plaintiffs treating physician. Further, because
of the availability of disclosure under CPLR Article 31, such private
interviews had been prohibited during discovery, prior to the filing of
a note of issue.

Since the adoption of HIPAA in 1996, issues concerning patient privacy
have been of increasing concern and defense counsel attempting to speak
privately with plaintiffs' non-party treating physiciano'have had to
comply with the requirements of HIPAA. Physicians require either written
authorizations signed by the plaintiff which comply with HIPAA and which
permit oral communication or a court order authorizing such oral commu-
nications which likewise complies with HIPAA. When plaintiffs refuse
after the filing of a note of issue to execute such authorizations,
defendants have moved to compel plaintiffs' execution of such authori-
zations. This has resulted in the Court of Appeals' holding in Arons v.
Jutkowitz, 9 NY 3d 393 (2007), where the Court held that an attorney may
interview an adverse party's treating physician privately. This holding
permits defense counsel to use HIPAA compliant authorizations to inter-
view treating physicians at anytime, both prior to and after the filing
of the Note of Issue and Certificate of Readiness. This creates an
inconsistency within CPLR Article 31, and creates the possibility of
significant post-note of issue discovery, which is expressly prohibited
by the Uniform Rules for New York State Trial Cou rts unless the party
seeking the discovery can demonstrate that "unusual or unanticipated
circumstances" have developed subsequent to the filing of the Note of
Issue and Certificate of Readiness which requires additional pretrial
proceedings to prevent substantial prejudice. 22 NYCRR 202.21(d).

This legislation would make it clear that in any action involving
personal injury, medical, dental or podiatric malpractice, or wrongful
death the defendant is barred from conducting ex parte interviews with a
party's treating physicians.

 
LEGISLATIVE HISTORY:

2017-18- A.9030 - Third Reading Calendar/S.243 - Referred to Judiciary
2016: A.242/S.287 - A. Codes/S.Judi
2015: A.242/S.287 - A. Rules/S.Judi
2014: A.2365/S.1046 - A. Cal/S.Judi
2013: A.2365/S.1046 - A. Codes/S.Judi
2012: A.694-A Lancman/S.3296 - A. Cal/S.Rules
2011: A.694-A Lancman/S.3296 - PA/S. Cal.
2010: A.1254-A Lancman/S.3203-A - A. Cal/S.Rules.
2009: A.1254 Lancman/S.3203-A - PA/S.Codes.
2008: A.8691-B Lancman/S.5256-B - PA/S.Codes
2007: A.8691-A Lancman/S.5256-A - PA/S.Rules

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
Shall take effect on the thirtieth day after it shall become law and
shall apply to all actions involving personal injury, medical, dental or
podiatric malpractice, or wrongful death filed on and after such date
and to all such actions pending on such effective date except as to
conduct prohibited by section one of this act with occurred prior to
such effective date.