Opinion
5694/2001
Decided May 11, 2005.
Motions sequence number 06 and 07 have been consolidated for disposition.
In motion sequence number 06, defendant St. Vincent's Hospital and Medical Center ("St. Vincent's") moves for an order quashing the pre-trial subpoena served by defendants Nina Fallick, M.D., Alice Furman, M.D. and Associates in Internal Medicine, P.C. ("Internists") on Dr. Anthony A. Starpoli, a non-party treating gastro-enterologist who performed an endoscopy on decedent Gregory Raynor months before his death. Plaintiff supports St. Vincent's motion to quash.
In motion sequence number 07, the Internists seek an order permitting nunc pro tunc amendment of their Notice of Nonparty Deposition of Anthony Starpoli, M.D. and compelling his deposition as well as production of records.
Background
Gregory Raynor died of acute and chronic bronchial asthma. In November 2001, his wife Lauren, on behalf of herself and her husband's estate, commenced this action alleging that defendants failed to properly evaluate, diagnose and treat Mr. Raynor, and that they repeatedly and excessively renewed his prescriptions for Albuterol. Plaintiff alleges that these departures from accepted medical and pharmacological practice caused Mr. Raynor injury and ultimately death.
Defendants moved for summary judgment dismissal of the action. The motions were denied and the denial was affirmed on appeal. Raynor v. St. Vincent's Hospital and Medical Center, 12 AD3d 298 (1st Dep't 2004). The case is set to be tried on June 23, 2005.
On February 8, 2005, the Internists served a subpoena on Anthony A. Starpoli, M.D. "for personal appearance at non-party deposition." Affirmation in Support of [Internists'] Motion and in Opposition to [St. Vincent's] Motion ("Internists' Aff."), Ex. C. St. Vincent's now moves to quash the non-party subpoena. St. Vincent's argues that with the case now ready for trial, the Internists should not be permitted a "tardy fishing expedition into Dr. Starpoli's treatment, which deposition will merely add to the expense in what has already been an epic lawsuit." Affirmation in Support of St. Vincent's Order to Show Cause ("St. Vincent's Aff."), at ¶ 5. St. Vincent's points out that the disclosure period has been over for more than a year and a half. It further attacks the subpoena as "facially defective because it nowhere states what are the `special circumstances' justifying this non-party deposition." Id., at ¶ 5 (citing Tannenbaum v. Tannenbaum, 8 AD3d 360 [2nd Dep't 2004]; Dioguardi v. St. John's Riverside Hosp., 144 AD2d 333 [2nd Dep't 1988]).
In support of St. Vincent's motion to quash, plaintiff argues that Dr. Starpoli's medical records were exchanged during pre-trial disclosure and if a deposition were really necessary, the Internists could have conducted one within the discovery period. Plaintiff urges:
"The Internists have failed to cite any authority that would permit a party to conduct a pre-trial deposition of a physician that treated the plaintiff's decedent long before the death and long before the Note of Issue was filed, where all parties knew of said doctor and had access to said doctor's medical records for at least a year prior to the Note of Issue being filed, and where there were neither unusual nor unanticipated circumstances that arose subsequent to the filing of the Note of Issue that would justify such a deposition more than a year and half after the Note of Issue was filed and less than three months before a firm and final trial date."
Plaintiff's Affirmation in Further Support of Motion to Quash the Pre-Trial Subpoena of Non-Party Treating Physician Dr. Starpoli ("Plaintiff Aff."), at ¶ 12. Plaintiff asserts that the Internists have not demonstrated "unusual or unanticipated circumstances" sufficient to warrant a post-note-of-issue deposition or that they would suffer "substantial prejudice" absent the deposition. See, 22 N.Y.C.R.R. 202.21(d).
In response to St. Vincent's motion, the Internists move to amend the subpoena to reflect "the circumstances and reason for the non-party deposition of Dr. Starpoli." Internists' Aff., at ¶ 7; see also, CPLR 3101(a)(4). The Internists specify that they:
"would like to inquire of Dr. Starpoli concerning not only the habitual and daily use of marijuana by the deceased, which is contradictory to plaintiff's deposition testimony. * * * [Plaintiff testified that decedent] smoked marijuana less than ten times per year in the three or four years prior to his death. In fact, Dr. Starpoli examined the patient and assessed the patient on March 17, 1999 the same year of his death, documenting the daily use of marijuana at that time. Additionally, we would like to obtain from Dr. Starpoli his recommendations relative to smoking marijuana, as the patient was found on autopsy with evidence of marijuana in his system."
Internists' Aff., at ¶ 9. The Internists further contend that Dr. Starpoli's records reflect that he advised Mr. Raynor to stop smoking "and he indicated in his assessment he felt the asthma was possibly related to GERD [gastroesophageal reflux disease], with which the patient presented." Id., at ¶ 10. The Internists argue that information "related to the patient's lungs and particularly the asthma and anything that might relate [to] the patient's asthma including GERD" is essential. Id.
Addressing the timeliness of the subpoena, the Internists assert that counsel had always intended to meet with Dr. Starpoli privately after the note of issue was filed. After reading this Court's decision in Browne v. Horbar, 6 Misc 3d 780 (Sup.Ct. NY Cty. 2004) (denying motion for a qualified protective order allowing defense counsel to engage in private conversations with decedent's treating physician), however, it became clear that it was unlikely that they would obtain an Order authorizing a private interview. Therefore, they decided to proceed with a deposition on notice to all parties. Plaintiff Aff., at ¶ 13. The Internists maintain that they waited to seek a deposition until after their appeal was finally resolved because if they had prevailed, the deposition would have been unnecessary.
Analysis
The CPLR affords parties a right to "full disclosure of all matter material and necessary in the prosecution or defense of an action." CPLR 3101. The opportunity for disclosure, however, is not without limits. A party filing the note of issue must certify, for example, that "discovery proceedings now known to be necessary [have been] completed" and once the note of issue is filed additional disclosure may be permitted only where "unusual or unanticipated circumstances develop subsequent to the filing of the note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice." 22 N.Y.C.R.R. 202.21(d).
Before HIPAA became effective, attorneys for defendants were able to conduct private interviews with plaintiffs' (or their decedents') treating physicians provided that the note of issue had been filed. See, e.g., Fraylich v. Maimonides Hosp., 251 AD2d 251 (1st Dep't 1998). There was no need for any court involvement in these informal interviews.
HIPAA, however, has changed the legal landscape.
New York courts agree that ex parte interviews are no longer permissible without either (1) an authorization from the patient, (2) a court order or (3) a trial subpoena that assures the doctor that the patient "received notice of the request or that the [defendant's] attorney secured a protective order." See, Valli v. Viviani, 7 Misc 3d 1002(A) (Sup.Ct. Suffolk Cty. 2005) (trial subpoena on notice permits private interview); Smith v. Rafalin, 6 Misc 3d 1041(A) (Sup.Ct. NY Cty. 2005) ("use of HIPAA compliant authorizations [bearing a statement in BOLD letters "that the purpose of the disclosure is not at the request" of the patient] is generally preferable to a subpoena or a court order"); Steele v. Clifton Springs Hosp. and Clinic, 6 Misc 3d 953 (Sup.Ct. Monroe Cty. 2005) (ordering provision of authorizations containing conditions, including informing the doctor that the purpose of disclosure is not at the request of the patient) That, however, is where the agreement ends. Many courts have ordered plaintiff patients, against their will, to provide authorizations — albeit ones that indicate that any interview is not at the request of the patient — to facilitate ex parte interviews. See, e.g., Smith v. Rafalin, 6 Misc 3d 1041(A); Steele v. Clifton Springs Hosp. and Clinic, 6 Misc 3d 953; Keshecki v. St. Vincent's Med. Ctr., 5 Misc 3d 539 (Sup.Ct. Richmond Cty. 2004) (Maltese, J.); Beano v. Post, Index No. 5694/2001 (Sup.Ct. Queens Cty. March 12, 2004) (Dollard, J.). Another court has concluded that an authorization is not required and that trial subpoenas on notice to all parties are sufficient to permit the meetings. Valli v. Viviani, 7 Misc 3d 1002(A) (Sup.Ct. Suffolk Cty 2005). The rationale underlying these determinations is that by bringing a medical malpractice action the patient's confidentiality is waived, post-note-of-issue ex parte interviews have traditionally been allowed, and finally, requiring non-party depositions would increase the cost of the case while informal meetings do not. See, e.g., Smith v. Rafalin, 6 Misc 3d 1041(A); Steele v. Clifton Springs Hosp. and Clinic, 6 Misc 3d 953.
In Browne v. Horbar, by contrast, this Court refused to issue an Order authorizing ex parte post-note-of-issue interviews and did not compel provision of an authorization permitting private discussions between defense counsel and the patient's treating physician. See, Browne v. Horbar, 6 Misc 3d 780. The Court explained that:
"Private interviews outside the patient or patient representative's presence present very troubling confidentiality problems. In the course of private interviews a treating physician may release information about a patient that has not even been communicated to that patient. Additionally, there is a very real risk that defense counsel may inquire into matters that do not relate to the condition at issue and, unlike in the context of judicially supervised disclosure proceedings, no one is present to ensure that the patient's rights are not violated. While it is clear that certain privacy rights are waived by commencement of a medical malpractice action, it is equally clear that there are limitations on the waiver."
Id. This Court concluded that the period for disclosure had long been over and that by issuing an Order authorizing an interview on defendant's motion, the Court would improperly be assisting in the informal information gathering process after discovery had ended. If a plaintiff voluntarily agrees to provide an authorization allowing private discussions, perhaps hoping that the conversations may ultimately further settlement, the Court has no problem with the ex parte inquiry because the patient has consented. Judicial involvement in the process by issuing an order authorizing a private meeting without the patient's agreement and without any oversight, however, is where this Court drew the line. Another New York County court has taken a different approach and issued a "Policy Regarding Post-Note Requests for Interviews of Treating Physicians." The policy provides that:
"The privacy protections afforded by the Health Insurance Portability and Accountability Act (HIPAA) raise issues as to the propriety of defendant's ex parte interview of plaintiff's treating physician after the note of issue has been filed. If counsel wish to speak with plaintiff's physician, they are urged to seek permission as part of the formal discovery proceedings before the note of issue is filed. If that is not done and a post-note interview is sought defendant should move by order to show cause. The defendant will then have the burden of showing:
1. "That the interview will yield evidence `material and necessary' to the defense of this action, as defined by CPLR 3101; and
2. "Why the evidence was not sought formally during the discovery phase of the proceedings.
"After the plaintiff has had an opportunity to be heard on the motion, the Court will determine whether and in what manner to lend its authority to permit the requested relief."
Policy adopted by Justice Alice Schlesinger, Supreme Court New York County (published in the New York Law Journal Mar. 14, 2005, at 9).
Here, the Internists are not seeking to conduct ex parte interviews. Because they have not been authorized to engage in private conversations with Dr. Starpoli, they move for a deposition in the company of any party that seeks to attend. They assert that the changes brought about by HIPAA are "unanticipated circumstances" and that they would be prejudiced without access to Dr. Starpoli and an opportunity to ask him about medical advice that he rendered and observations that he made related to Mr. Raynor's asthma.
The note of issue was filed shortly after HIPPA became effective. The Internists cannot be blamed for failing to anticipate that HIPAA would impact their ability to privately interview Dr. Starpoli. Indeed, they had grounds to believe that when the note of issue was filed discovery proceedings known to be necessary were completed and that they would not need court assistance to complete their investigation. As such, they must be afforded access to the treating physician. Plaintiff has not offered to provide an authorization permitting an ex parte communication and thus the Court must intervene. Under these circumstances, the Court will not foreclose the Internists' ability to obtain information material and necessary to the action. They have satisfied the requirements of 22 N.Y.C.R.R. 202.21(d) and the Court will allow the deposition to proceed before the trial date.
Additionally, contrary to St. Vincent's argument, the Internists need not make any showing of special circumstances to justify the deposition of non-party Dr. Starpoli.
"CPLR 3101(a)(4) provides that there `shall be full disclosure of all matter material and necessary in the prosecution or defense of an action' by a non-party, `upon notice stating the circumstances or reasons such disclosure is sought or required.' There is no longer any necessity for `special circumstances.' * * * The Second Department cases cited * * * in support of [the] argument that the `special circumstances' requirement survived the 1984 amendment of CPLR 3101(a)(4) ( see, e.g., Dioguardi v. St. John's Riverside Hosp., 144 AD2d 333, 334, 533 N.Y.S.2d 915) are in conflict with this Court's own decisions and are therefore not followed."
Schroder v. Consolidated Edison Co., 249 AD2d 69 (1st Dep't 1998). Thus, one seeking a non-party deposition must simply state the circumstances or reasons the deposition is sought. The Internists admittedly did not set forth the reasons for Dr. Starpoli's deposition in their subpoena or notice. Based on this motion practice, however, it is clear that all of the parties and Dr. Starpoli are well aware of the basis for the deposition and the Internists' motion to amend nunc pro tunc the Notice of Nonparty Deposition of Anthony Starpoli, M.D. and subpoena is granted.
Significantly, the Court is not swayed by St. Vincent's or plaintiff's argument that a non-party deposition will be costly. If either St. Vincent's or plaintiff does not want to incur any additional cost, they need not attend the deposition. They can waive their right to be present.
Finally, Dr. Starpoli himself has not sought to quash the subpoena. Therefore, the Court is not concerned that what appears will be a short deposition will impose a significant burden on him. His counsel appeared in court and fully cooperated by providing dates that Dr. Starpoli is available (Wednesday afternoons exclusive of the period between 5/13/05-5/20/05). Counsel for the Internists should contact Dr. Starpoli's attorney immediately and make arrangements to go forward. The parties are reminded that Dr. Starpoli will appear at the deposition as a fact witness.
Accordingly, it is
ORDERED that St. Vincent's motion to quash the subpoena served on Dr. Starpoli is denied; it is further
ORDERED that the Internists motion permitting nunc pro tunc amendment of their Notice of Nonparty Deposition and subpoena of Anthony Starpoli, M.D. and compelling his deposition as well as production of records is granted with the understanding that the trial date will not be adjourned to accommodate the non-party deposition; it is further
ORDERED that the parties are to appear in court on June 7, 2005 at 10:00 a.m. for a further settlement conference.
This constitutes the Decision and Order of the Court.