Kish v. Graham

OPINION OF THE COURT Gorski, J. Plaintiff commenced this medical malpractice and wrongful death action alleging that, while plaintiff’s decedent was a patient at defendant Jones Memorial Hospital, defendants David H. Graham, M.D., Phyllis A. Kephart, M.D. and Mohammed Ayyub, M.D. failed to diagnose and treat decedent’s serious condition, i.e., perineal necrotizing fasciitis secondary to a penetrating wound of the scrotum. According to plaintiff, decedent died days later because that condition was not appropriately and immediately treated upon decedent’s arrival at defendant hospital. Following the completion of discovery, defendants’ attorney served upon plaintiffs attorney a demand for authorizations in compliance with the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 USC § 1320d et seq.) permitting defendants’ attorneys and staff to conduct ex parte interviews with decedent’s treating physicians. Plaintiffs attorney refused to provide the authorizations, and defendants thereafter moved for an order compelling plaintiff to comply with defendants’ demand for the HIPAA-compliant medical authorizations or, in the alternative, precluding plaintiff from — 120 — offering testimony or records of decedent’s treating physicians at trial and prohibiting plaintiffs attorney from speaking with decedent’s treating physicians prior to trial. Supreme Court granted the motion and directed plaintiff to provide the requested authorizations permitting such interviews on certain conditions. For the reasons that follow, we conclude that the order should be reversed and the motion denied. In Cwick v City of Rochester (54 AD2d 1078 [1976]), this Court was presented with the issue whether the trial court had properly allowed defendants to interview a plaintiffs medical expert with respect to his opinion letter. We concluded that “[n]o authority to ‘interview’ a medical witness exists under the rules of this department” (id. at 1078), and we noted that “there are ample disclosure devices in CPLR article 31 for defendants to obtain whatever information that is properly obtainable in connection with [the expert’s opinion letter] that they seek” (id. at 1079). In Anker v Brodnitz (98 Misc 2d 148 [1979], affd 73 AD2d 589 [1979], lv dismissed 51 NY2d 743 [1980]), Supreme Court, Queens County, wrote that “[t]he import of the [Cwick] case is that medical discovery should be limited to that obtainable by rule, statute, or express consent and that private interviews would not be allowed even after the exchange of medical records” (id. at 151). The court also wrote that “the better rule denies defendant the right to question plaintiffs doctors outside formal discovery procedures” (id.). The court further wrote that “[t]o permit private interviews upon the service of a complaint would subject physicians to improper pressures to disclose” (id. at 153). The court concluded by observing that “[t]he adequacy of formal discovery procedures, the difficulty of determining what medical information is relevant, and the possibility of doctors or insurers becoming the object of lawsuits for unauthorized disclosure require that there be no private interviews without a patient’s express consent” (id. at 154). In affirming Supreme Court’s order in Anker, the Second Department did not write. Plaintiff contends that the Cwick/Anker rule began to be eroded based on the following language in the decision of the Second Department in Zimmerman v Jamaica Hosp. (143 AD2d 86 [1988], lv denied 73 NY2d 702 [1988]): “Moreover, we discern no violation of any recognized legal or ethical proscription occasioned by the — 121 — testimony of Dr. Rueben, a hospital physician who treated the infant plaintiff prior to the commencement of the action. The trial court properly determined that the rule announced in Anker . . . did not bar Dr. Rueben from testifying. That decision precludes an opponent’s use of unauthorized private interviews with treating physicians during the pretrial discovery phase of a medical malpractice action absent the patient’s express consent or a court order” (id. at 88). Thereafter, a series of cases cited the Zimmerman “rule” and seemed to relegate the Cwick/Anker rule, which prohibited interviews, to a pre-note of issue rule only. For example, the Second Department wrote in Levande v Dines (153 AD2d 671 [1989]) that the trial court precluded the testimony of one of plaintiff wife’s treating physicians based on Anker, “which precludes a defendant from conducting an unauthorized, private interview with the plaintiffs treating physician during the pretrial discovery phase of a medical malpractice action (see, Stoller v Moo Young Jun, 118 AD2d 637). The rationale for this rule is the sanctity of the physician-patient privilege during discovery (Zimmerman . . . , 143 AD2d 86). We find that the trial court’s reliance on the Anker case was misplaced. The record contains no indication that the defendant conducted such prohibited interviews. The defendant first contacted [the treating physician in question] after the note of issue had been filed, when the discovery phase of the action clearly had been completed (see, Zimmerman[, 143 AD2d 86]). In light of the fact that [the treating physician in question], unlike any of the other doctors who had testified, could have given a medical opinion based on his personal observations of the plaintiff’s condition as it existed [when he examined plaintiff], the preclusion of such testimony was prejudicial, and accordingly, we reverse” (emphasis added). The practice of permitting post-note of issue ex parte interviews was continued and has been used in recent years primarily in medical malpractice litigation to allow post-note of issue interviews. In 1999, this Court wrote in Luce v State of New York (266 AD2d 877 [1999]) that the claimant’s reliance on Stoller (118 AD2d 637 [1986]), Cwick and Anker “is misplaced. — 122 — Those cases hold only that defense counsel may not privately interview nonparty treating physicians during the discovery phase of an action” (Luce, 266 AD2d at 878). We note, however, that those three cases did not precisely so hold. In Stoller (118 AD2d at 637), the Second Department cited Anker in determining that “Special Term correctly held that the appellants are not entitled to conduct an unauthorized (i.e., without the plaintiffs’ consent) private interview with ... a nonparty treating physician; they are limited to the discovery devices prescribed in CPLR article 31 . . . .’’As previously noted, the Cwick/Anker holding is that there is no authority for conducting private interviews with an opposing party’s medical expert and that there otherwise are ample disclosure devices available for seeking information that is properly discoverable under CPLR article 31. The Second Department recently clarified its position on this issue in Arons v Jutkowitz (37 AD3d 94 [2006]). The Second Department wrote that it has held that the treating physician’s testimony should not be precluded “on the ground that defense counsel had private discussions with him or her after the note of issue was filed,” and the Court noted that, since the issuance of its decisions in, e.g., Levande and Zimmerman, “the defense bar has adopted the practice of regularly conducting such post-note of issue ex parte meetings” (id. at 97). The Court went on to clarify, however, that “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 [citing Levande and Zimmerman]. ‘This is in keeping with the general rule that no party has a proprietary interest in any evidence, and that absent unfair prejudice each party has the right to marshall, and the jury has the right to hear, the testimony that best supports each position’ (Tiborsky v Martorella, [188 AD2d 795, 797 (1992)]). The federal government’s enactment of HIPAA does not alter this precedent despite the practical obstacles it now imposes for defense counsel who seek such private interviews” (id. at 97-98). — 123 — We agree with the Second Department’s analysis of the impact of HIPAA and the Privacy Rule (45 CFR parts 160, 164) on the issue before us: “In light of . . . the privacy rule, defense counsel have faced a practical dilemma in attempting to privately speak with plaintiffs’ nonparty treating physicians after a note of issue has been filed. ‘Specifically, it appears that treating physicians are requiring either written authorizations signed by the plaintiff which comply with HIPAA and which permit oral communications, or a court order authorizing such oral communications which likewise comply with HIPAA’ .... In other words, since the enactment of HIPAA, defense counsel’s attempts to privately speak with nonparty treating physicians have been hindered when plaintiffs will not execute HIPAA-compliant authorizations specifically permitting such communications. Under these circumstances, defendants have moved, as in this case, to compel plaintiffs’ execution of such authorizations” (Arons, 37 AD3d at 99). The Second Department went on to write: “While courts are empowered to supervise disclosure (see CPLR 3104), they must do so in accordance with the Uniform Rules and the provisions of CPLR article 31 which, as previously noted, do not authorize private, ex parte interviews as a disclosure device (see generally CPLR 3102 [a]). Rather, compulsion of such unsupervised, private and unrecorded interviews plainly exceeds the ambit of article 31” (id. at 100). In our view, there are compelling reasons for prohibiting such interviews. First, there are no provisions in the law permitting such informal disclosure. Second, formal discovery procedures are in place that would allow an “on the record” discussion with such witnesses in the presence of counsel for the opposing party. Third, we are concerned here with witnesses with privileged medical information, not merely witnesses who will testify to nonprivileged facts. Thus, the established case law that permits equal access to fact witnesses does not apply here. Although a person’s relevant medical history is placed at issue when an action is commenced by or on behalf of that person, access to that medical history is not without boundaries (see Dil — 124 — lenbeck v Hess, 73 NY2d 278, 287 [1989]). Unsupervised interviews with treating physicians in an ex parte setting may result in the intentional or inadvertent revelation of a person’s irrelevant medical history. For example, information concerning a sexually transmitted disease may be intentionally or inadvertently revealed during a discussion of the treatment of lung cancer. Fourth, and perhaps most importantly, we can conceive of no reason for allowing a practice that concededly is not permitted prior to the filing of a note of issue to be permitted after the note of issue is filed. Pursuant to CPLR 3121 (a), a party may serve a notice requiring another party to provide medical authorizations for the release of relevant medical information and, pursuant to CPLR 3106 (b), a party may seek to depose nonparty treating physicians prior to the filing of the note of issue. In addition, 22 NYCRR 202.21 (d) provides a vehicle for seeking pretrial disclosure after the note of issue has been filed, provided that the party seeking the disclosure can demonstrate “unusual or unanticipated circumstances” (id.). There is no statutory or regulatory authority in New York that would permit ex parte interviews with a plaintiffs treating physicians and, to the extent that prior cases of this Court suggest otherwise, they are no longer to be followed. As the Second Department succinctly wrote, “compulsion of such unsupervised, private and unrecorded interviews plainly exceeds the ambit of [CPLR] article 31” (Arons, 37 AD3d at 100). Finally, we note that our decision does not affect the ability of the parties to gather information relative to the issues raised in a personal injury, medical malpractice or wrongful death action. The presence of counsel for the opposing party at a discovery proceeding will serve to keep the inquiry into medical treatment focused only on that medical information that is relevant to the controversy at bar. Accordingly, we conclude that the order should be reversed and the motion denied.