Citation Numbers: 29 Misc. 3d 936, 908 NYS2d 537
Judges: Scheinkman
Filed Date: 9/21/2010
Status: Precedential
Modified Date: 10/19/2024
OPINION OF THE COURT
Motion by defendant Kyle Lipton for an order (1) pursuant to CPLR 3124, compelling plaintiffs to provide medical authorizations as requested by defendants which are compliant with both HIPAA (Health Insurance Portability and Accountability Act of 1996, codified in part at 42 USC § 1320d et seq.) and Arons v Jutkowitz (9 NY3d 393 [2007]), and permitting movant’s counsel to interview plaintiffs treating physicians, or in the alternative, (2) pursuant to CPLR 3042 and 3126, precluding plaintiffs from offering proof at trial, and (3) pursuant to 22 NYCRR 130-1.1, imposing costs and sanctions upon plaintiffs for their deliberate failure to comply with movant’s discovery demand.
It is ordered that the motion is decided as follows:
In this medical malpractice action, defendant Kyle Lipton, M.D. requested that plaintiff Romana Akalski provide authorizations which were compliant with both HIPAA and Arons, and valid for the duration of the litigation. Plaintiffs objected to the request on the ground that a single authorization would violate HIPAA and Arons.
In support of the present motion, movant contends that he is entitled to a single HIPAA and Arons compliant authorization as to each of plaintiff’s treating physicians, so that he may conduct private interviews of the treating physicians. At oral argument, movant also contended that an Arons authorization need not identify a specific attorney who would be interviewing the treating physician and may identify a law firm, such that any attorney from the law firm could conduct the interview. Movant further contends that without an interview of plaintiffs treating physicians, he will be unable to prepare a meaningful defense.
Plaintiffs oppose the motion to the extent that movant seeks a single authorization which is both HIPAA and Arons compli
Article 31 of the CPLR permits liberal discovery of all matters that are material and necessary to the prosecution or defense of an action (CPLR 3101 [a]). The determination of what is “material and necessary” is within the sound discretion of the court, using usefulness and reason as its guide (Andon v 302-304 Mott St. Assoc., 94 NY2d 740 [2000]). In Arons v Jutkowitz (9 NY3d 393 [2007]), the Court of Appeals held that there was no general prohibition against defense counsel conducting an ex parte interview with a nonparty physician who treated plaintiff, provided that counsel complied with the HIPAA Privacy Rule (45 CFR parts 160, 164) and certain limitations set forth in analogous case law concerning interviews. Those limitations on the authorizations referred to in Arons include notice to the physician to be interviewed that the purpose of the interview is to assist the defendants in defense of a lawsuit, and that his or her participation is voluntary (Porcelli v Northern Westchester Hosp. Ctr., 65 AD3d 176, 185 [2d Dept 2009]).
The HIPAA Privacy Rule, as noted in Arons, forbids organizations subject to its requirements from using or disclosing an individual’s health information except as mandated or permitted by its provisions, including disclosure in response to a valid
Similarly, the court finds movant’s contention that an Arons authorization may identify a law firm to conduct the interview, as opposed to an individual attorney, is also without merit. As to the identity of the person authorized to request the disclosure, the Court of Appeals in Arons stated that “we ‘assume[ ] that attorneys would make their identity and interest known to interviewees and comport themselves ethically’ ” (9 NY3d at 410,
Plaintiffs’ objection as to the timing of the Arons authorization, however, is without merit. Although the Court of Appeals in Arons considered the request for an authorization to interview a treating physician which was made after the plaintiff filed a note of issue, and it may be that such interviews are usually conducted post-note of issue (see Tirado v Miller, 75 AD3d 153 [2d Dept 2010]), the courts have held that ex parte interviews of plaintiffs treating physician may occur, and are preferred, prior to the filing of the note of issue (Shefer v Tepper, 73 AD3d 447 [1st Dept 2010]; Probala v Rian Holding Co., LLC, 26 Misc 3d 1201[A], 2009 NY Slip Op 52614[U] [Sup Ct, NY County 2009]). Notably, in Arons, the Court of Appeals acknowledged that “the filing of a note of issue denotes the completion of discovery, not the occasion to launch another phase of it” (9 NY3d at 411), and expressed a preference that such interviews should occur prior to the filing of the note of issue. Indeed, the Court of Appeals noted that, if the interviews could not be conducted until after the note of issue was filed, if a treating physician refuses to talk with an attorney, it would normally be too late to seek the physician’s deposition or interrogatories as an alternative (9 NY3d at 411). The Court approvingly quoted from Justice Elizabeth Pine’s dissenting opinion in Kish v Graham (40 AD3d 118, 129 [4th Dept 2007]), a case which was decided along with Arons and which was reversed by the Court of Appeals, to the effect that an advantage to a physician in participating in an informal interview was that the physician might avoid having to attend a lengthy deposition or provide a time-consuming response to detailed and lengthy interrogatories (9 NY3d at 409), alternatives that are only generally available pre-note of issue.
In view of the foregoing, it is ordered that the branch of the motion seeking to compel plaintiffs to provide authorizations is