Opinion
0021902.
Decided May 11, 2005.
Stamm, Reynolds Stamm, Bradley J. Stamm, Esq. of Counsel Attorneys for Plaintiff.
Roach, Brown, Mccarthy Gruber, PC, Keri D. Callocchia, Esq. of Counsel Attorneys for Defendants.
Defendants move to compel plaintiff to provide HIPAA compliant authorizations permitting defendant to conduct a private interview with plaintiff's treating physicians in order to prepare for trial. The court has considered the following papers submitted: Affidavit of Keri D. Callocchia, Esq. of March 24, 2005, and exhibits, in support of the motion; Affidavit of Bradley J. Stamm, Esq. of April 5, 2005, in opposition to the motion.
The resolution of this motion requires the court to determine the effect HIPAA had on previously settled law regarding the ability of defendants in personal injury actions to subpoena a plaintiff's treating physicians for trial, and, if the physician was willing, to conduct a private interview with the physician in preparation for trial testimony. The passage of HIPAA necessarily impacted this procedure, as the treating physicians are now unwilling to conduct the private interview with defense attorneys absent a HIPAA compliant authorization. To date, a number of trial courts have issued decisions on whether or not to permit the authorizations (or some alternative to the authorizations) and any appropriate limitations or conditions on the authorizations. This court has reviewed the decisions in Smith v. Rafalin, 6 Misc 3d 1041 (Unpublished decision), 2005 WL 697581 (Sup.Ct. N.Y. Co. March 24, 2005), Keshecki v. St. Vincent's Medical Center, 5 Misc 3d 539 (Sup.Ct. Rich. Co. 2004); Browne v. Horbar, 6 Misc 3d 780 (Sup.Ct. N.Y. Co. 2004); and Steele v. Clifton Springs Hospital and Clinic, 6 Misc 3d 953 (Sup.Ct. Monroe Co. 2005).
I. Law on the Conduct of Interviews Prior to HIPAA
In Anker v. Brodnitz, 98 Misc 2d 148 (Sup.Ct. Queens Co. 1979), aff'd, 73 App.Div.2d 589 (2nd Dept. 1979), leave to appeal denied, 51 NY2d 703 (1980), the court determined that private interviews of the plaintiff's treating physician during the discovery phase were improper. Although the opinion speaks of the extent to which the doctor-patient privilege was waived in making its determination, the Second Department clarified in Feretich v. Parsons Hospital, 88 App.Div.2d 903 (2nd Dept. 1982) that the limits on disclosure determined in Anker v. Brodnitz were imposed "not because of the physician-patient privilege, which is generally waived by bringing a malpractice action, but by the very design of the specific disclosure devices available in CPLR article 31." 88 App.Div.2d at 904.
Subsequent to the decisions in Anker v. Brodnitz and in Feretich, each of the Appellate Departments determined that those decisions were relevant only to the discovery period before the filing of a note of issue. Each of the courts determined that a defendant could serve a trial subpoena upon a plaintiff's treating physician, and then, in preparation for trial, speak ex parte with the physician. See, Fraylich v. Maimonides Hospital, 251 App.Div.2d 251 (1st Dept. 1998); Levande v. Dines, 153 App.Div.2d 671 (2nd Dep. 1989); Tiborsky v. Martorella, 188 App.Div.2d 795 (3rd Dept. 1992); and Luce v. State, 266 App.Div.2d 877 (4th Dept. 1999).
There is good reason for the distinction between pre-note interviews and interviews after the service of a trial subpoena, notwithstanding the court's decision in Browne v. Horbar, supra. During the discovery phase, either party may take the non-party deposition of a treating physician pursuant to CPLR 3107, which permits the examination of "any person." While the plaintiff's attorney may also have private access to a subsequent treating physician during this phase, this does not present an unfair advantage to plaintiff, when considering that defendant's attorney has greater access to expert opinion through the defendant himself or herself or through other physicians willing to act as expert reviewers.
As the parties prepare for trial, however, the landscape shifts. It would not be appropriate to allow the plaintiff sole control over whether or not a treating physician is called as a witness at trial, and so defendant is permitted to issue a trial subpoena compelling that physician's testimony. See, Levande v. Dines, supra. In fact, because a defense attorney does not know whether the plaintiff plans on calling a treating physician as a witness, that attorney might need to issue the trial subpoena whenever it is possible that the treating physician may be able to give testimony helpful to the defendant. In general, when a trial subpoena is issued, it is neither inappropriate nor improper for the attorney and witness to confer prior to trial. It is subject only to the willingness of the two parties to do so. As a result, until HIPAA was enacted, the practice evolved that in preparation for trial, defendants' attorneys would issue trial subpoenas to treating physicians, and then attempt to confer with them prior to trial. Whether or not the conference took place was left to the discretion of the treating physician.
This methodology also saves time and expense in the litigation of claims. If a defendant were altogether barred from conducting a private interview pursuant to a trial subpoena, the only alternatives to defendants would be to conduct a deposition before the filing of a note of issue or to call the treating physician as a witness without any indication of whether the testimony will be helpful, an alternative which might cause both trial and tactical difficulty. A deposition would add considerable cost, complexity and delay to all medical malpractice cases. First, the deposition of a treating physician would require the physician to cancel office or hospital work for at least a half day. The attorneys would have to be cooperative in scheduling, and finding a date convenient to all parties could delay the progression of the case for several months. Second, non-party treating physicians who do give deposition testimony in medical malpractice cases usually insist upon the representation of counsel, adding cost and any delay or complexity occasioned by the introduction of an additional attorney to the action. It is simply not practical or judicially efficacious to limit all contact with treating physicians to formal deposition testimony prior to the filing of the note of issue. If conducting post-subpoena interviews does not violate any privilege or HIPAA, public policy is not advanced by prohibiting such interviews.
II. HIPAA Requirements
The Health Insurance Portability and Accountability Act (HIPAA), enacted by Congress in 1996, requires certain safeguards for the protection of patients' private health information. HIPAA does not create a federal physician-patient privilege; it is purely procedural in nature. Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004). The privilege is only imposed by New York state law, and to the extent a legal action puts a physical or mental condition at issue, the privilege is waived by the bringing of the action. Koump v. Smith 25 NY2d 287 (1969). Thus, the enactment of HIPAA does not create a new right to plaintiff that requires a reexamination of the previously settled law regarding the entitlement of a defendant to serve a trial subpoena upon a treating physician and to then conduct an informal interview of the physician. The law, as established in the four Appellate Departments is unchanged by HIPAA, and it would be improper for this court to do anything but follow those decisions.
Nonetheless, HIPAA's procedures do require a "HIPAA-compliant" authorization or a substitute specifically permitted under the HIPAA regulations. While HIPAA sets forth a number of such substitutes, the only one relevant to the purpose for which it is needed in this case is a court order. See 45 CFR § 164.512. The difficulties in using a court order or a court ordered subpoena for the interview sought here have been noted in the other lower court decisions. The interview in question will be conducted only if agreeable to the lawyer and witness subject to the trial subpoena. Any court order permitting the interview will likely appear to the party receiving such an order as a direction to submit to the interview. Because of the likelihood that the order may be so misconstrued, it would be preferable to proceed by way of an authorization. Consequently, plaintiff is required to supply such an authorization specifically for the interview in question.
III. Limitations and Conditions on the Authorization
Several lower courts, in requiring the authorization, have placed certain conditions and limitations on both the authorization and upon the interview. This court has reviewed several different regimes of conditions imposed in these decisions and espouses some and rejects others.
A. Temporal and Subject Matter limitations upon the authorization
While the plaintiff has waived the physician patient privilege by bringing this action, that waiver is limited to the physical and mental conditions placed in issue by the lawsuit. Depending upon the care and treatment rendered by a particular treating physician, it may be proper to limit the authorization by time or by subject. However, the plaintiff has previously provided an authorization for the same treating physician to enable the defendant to receive the medical records. Whatever limitation there was upon that authorization should also be placed upon the authorization provided to enable the interview. Similarly, if the original authorization was unlimited, so should this authorization. Also, the authorization should specifically enable the treating physician to participate in the interview with any member or associate of the law firm representing the party who has requested it.
B. Service of a subpoena
Some of the decisions caution against serving a subpoena along with the authorization, in that the physician might misconstrue the subpoena to require the interview. However, the issuance of a trial subpoena is the very basis for the conduct of the interview. Without a trial subpoena, the interview of the treating physician resembles post-note of issue discovery rather than trial preparation. In order to prevent the use of the interview as simply post-note of issue discovery, the defendant's attorney must serve upon the physician a trial subpoena, setting forth the date and place of trial. The trial subpoena should be served prior to, or contemporaneous with, the authorization and request for an interview. In the event that the defense attorney decides against calling the physician at trial, the subpoena can be withdrawn. If the case has not yet been scheduled for trial, the trial subpoena cannot issue, and any interview is improper.
C. Subpoena Duces Tecum
If records are requested for trial, the subpoena duces tecum is subject to the requirements of CPLR 2303 (a). A copy of the subpoena must be served upon the plaintiff and the subpoenaed records must be delivered to the court, not to counsel. The private interview with the treating physician should not require the physician to produce any notes or records of any kind. If the physician wishes to use office records to refresh his/her recollection, or if the defense attorney wishes to question the physician on notations in the office records, they should use the copy of the records provided to the defense attorney during the discovery period. This will ensure that the interview is not used as a manner to discover records that were not previously produced, either because they are outside of the scope of the original authorization or were never requested by the attorney.
D. Further safeguards regarding the authorization
Several courts address whether there should be language on the authorization making clear that the interview is optional and that it is not being requested by the plaintiff. These and other issues are better addressed by way of a cover letter by the defense attorney to which the authorization is attached. The letter should state 1) that while the trial subpoena (either previously or contemporaneously served) requires the physician's testimony at the trial, the physician is in no way obligated to speak with the attorney at any time prior to such testimony; 2) that while the plaintiff has signed the authorization, the request for the interview and for the authorization originated with the defendant and is solely to assist the defendant(s) represented by the defense attorney at trial [the names of the defendant(s) represented should be enumerated]; 3) that if the physician grants the interview, a copy of the physician's records which were previously provided to the defendant will be available to assist the physician in the interview. In the event that the defense attorney uses a "Keshecki-like" authorization with many of these safeguards upon it the cover letter should still contain all of these required safeguards.
E. Other conditions
Some decisions discuss whether the plaintiff should be given notice of the time and place of the interview to enable the plaintiff to attend. This is not required by HIPAA or by any of the decisions prior to HIPAA permitting the interview. It would be unfair and prejudicial to defendants to permit the plaintiff's presence, or even to inform the plaintiff whether the interview has been scheduled. Other than the notice of the possibility of the interview, occasioned by the requirement of the authorization, no further notice to the plaintiff is necessary.
F. Post-interview disclosure
Some decisions require the defense attorney to provide several items within 5 days of the interview. Generally, these include any written statements or documents provided by the physician and memoranda and recordings of the interview. Under the terms of this decision, there should be no written materials of any sort provided by the physician during the interview, and so this condition is unnecessary. In regard to any recordings, memoranda or notes made by the defense attorney during the interview, those items are attorney work product under Manning v. Kidorsjyi, 204 App.Div.2d 976 (4th Dept. 1994), and they need not be afforded to the plaintiff.
For the foregoing reasons, it is hereby
ORDERED, that within 10 days the plaintiff to provide to Roach, Brown, McCarthy Gruber, P.C. authorizations permitting them to speak with each of the following physicians: Dr. Christopher Hamill, Dr. Romanth Waghmare, Dr. Thomas DeGrave, Dr. Matthew Phillips, and Dr. Gerald Peer, each such authorization subject to whatever temporal or subject limitations were placed in the authorization for that physician permitting access to records; and it is
ORDERED, that defendant be permitted to conduct an ex parte interview with any such physician provided that 1) there is a trial subpoena served prior to or contemporaneous with the authorization; and 2) the authorization is accompanied by a letter containing all of the language required by paragraph III.D. of this Memorandum and Order; and 3) all other conditions for the conduct of the interview set forth in this Memorandum and Order are complied with.