The court in Porcelli held that “consistent with Arons v. Jutkowitz (9 NY3d ), such information may be included directly on the HIPAA-compliant authorization . In the summer of , the Appellate Division, Second Department, explicitly approved the inclusion of warning language on Arons authorizations in Porcelli v. What May Plaintiff’s Attorney Do in Response to an Arons Interview Plaintiffs were required to provide HIPPA authorizations permitting the.

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Once plaintiff filed a note of issue, one of the physician defendants requested HIPAA-compliant authorizations so that his attorneys might seek to interview decedent’s treating physician. Because this issue is one that, in my view, requires legislative action and cannot be adequately addressed by judicial decree, I respectfully dissent.

Arons Authorizations: What They Can Say (in the Second Dept., anyway)

But this concern is tempered by the fact that plaintiffs now know that they cannot legitimately refuse to sign these HIPAA-compliant authorizations. The effort was seen as worth making because pretrial interviews are “essential in procuring the doctors’ assistance at trial” Moore and Gaier, Liability for Breach of Confidentiality — Part 2, NYLJ, Dec.

While the Appellate Division’s blanket ban was easy to understand and apply, we concluded that the many benefits of informal discovery “require[d] that an effort be made” to create a workable, narrower test id.

He was further advised that if he was asked a question that might threaten such disclosures, he should decline aythorization answer for that reason.

Here are some reasons you should never use the DOH release authorizations: The Rule, however, permits uses and disclosures in numerous circumstances as regulated by its provisions 45 CFR In the appeals now before us, defendants forwarded to plaintiffs HIPAA- compliant authorizations permitting their treating physicians to discuss the medical condition at issue in the litigation with defense counsel. At the same time, this shift away from paper-based to systematized electronic records was perceived to threaten the confidentiality of sensitive patient information.

This was entirely proper. A state law is “contrary” to the Privacy Rule, however, only if it would be impossible for a covered entity to comply with both the state requirement and the Rule, or the former is an obstacle to accomplishing the full purposes and objectives of HIPAA’s “administrative simplification” provisions 45 CFR First, the prohibition of interviews in lieu of article 31 discovery devices originated in the trial court’s decision in Anker, a medical malpractice action handed down before — and at decided odds with our reasoning in — Dillenbeck, Hoenig, Niesig and Siebert.

Supreme Court granted the motion.

There are situations in which defense firms have altered medical authorizations to include the names of insurance carriers, thereby allowing insurance companies to obtain patient records. Non-party treating physicians have no idea what topics are off-limits in the private meetings with defense counsel.

Imposition of these conditions was improper. When plaintiff refused to sign the authorizations, defendants moved to compel her to do so or, alternatively, to prohibit her from offering these physicians’ records at trial, or speaking with them before trial. Second, it bears emphasizing that the filing of a note of issue denotes the completion of discovery, not the occasion to launch another phase of raons. Plaintiff appealed, and the Arone Division, Second Department, reversed.

In this medical malpractice action, plaintiff alleged that she suffered constant nausea, intractable vomiting and malnutrition as a result of a botched gastric stapling operation. As an initial matter, a litigant is “deemed to have waived the [physician-patient] privilege when, in bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue” Dillenbeck v Hess, 73 NY2d[], citing Koump v Smith, 25 Arlns[]; see also Hoenig v Westphal, 52 NY2d [] [physician-patient privilege waived by commencement of personal injury lawsuit].



Under our holding today, however, defense counsel would be permitted to obtain court-ordered, HIPAA-compliant authorizations at any time and use them at any time both prior to and after the filing of a note of issue and certificate of readiness. The waiver does not depend on the form or medium in which relevant medical information is kept or may be found: Here, the danger that the questioning might encroach upon privileged matter is surely no greater than was the case in Siebert since the subject matter of the interview or discussion — a patient’s contested medical condition — will be readily definable and understood by a physician or other health care professional.

When plaintiff refused to supply authorizations, defendants moved to compel her to do so. Moreover, if a state law mandates a disclosure, the Privacy Rule permits the disclosure under its “required by law” exception, which generally allows a covered entity to disclose protected health information without authorization where disclosure is compelled by another law 45 CFR Of course, it bears repeating that the treating physicians remain entirely free to decide whether or not to cooperate with defense counsel.

Decedent, who was hospitalized repeatedly for unavailing treatments in the roughly six months after her diagnosis, lapsed into a coma and died some weeks later.

While the Privacy Rule was modified innone of the revisions are relevant to these appeals. Plaintiff, who weighed pounds at the time of her surgery, lost pounds afterwards. Once the note of issue was filed, defendant physician and defendant hospital sought HIPAA-compliant authorizations for ex parte interviews with the gastroenterologist who treated plaintiff after her weight-loss operation, and the surgeon who operated on her to reverse the procedure. The permitted uses and disclosures relevant to these appeals are those made pursuant to authorization 45 CFR Barbara DeCrow Goldberg, for appellants.

authorizatio Finally, the court remarked that after the filing of a note of issue, an order for additional pretrial discovery called for the requesting party to demonstrate “unusual or unanticipated circumstances,” citing 22 NYCRR As described by practitioners, “defense counsel would usually serve the doctor with a trial subpoena or an authorization for medical records, attempt to speak with the doctor, and hope that the doctor would cooperate,” although “treating doctors have generally been disinclined to cooperate with attorneys for either side in malpractice actions” Moore and Gaier, Recent Cases on Ex Parte Interviews with Treating Physicians, NYLJ, Oct.

Applying the basic principal of statutory construction “expressio unius aythorization exclusio alterius” “the expression of one thing is the exclusion of the other” Black’s Law Dictionary, at [6th ed ]it is evident that the Legislature has limited the forms of authorizations to which defendants are entitled, namely, authorizations permitting defendants to obtain only copies of plaintiffs’ medical authorizatoin.

Why you should NEVER use a release authorization issued by the Department of Health

Judge Pigott dissents in an opinion. In contrast, defendants here seek court intervention compelling plaintiffs to execute HIPAA-compliant authorizations which, in my view, takes the matter out of the realm of informal discovery and into the realm of formal disclosure, which is supervised by the trial courts see CPLR While this litigation exception may appear to be tailored for those situations in which the protected health information is not being sought from a party to the proceedings, HHS has declared that “[t]he provisions in [section When devising the Privacy Rule, HHS sought to “strike[] a balance that permits important uses of information, while protecting the privacy of people who seek care and healing”; and to fashion a scheme sufficiently “flexible and comprehensive to cover the variety of uses and disclosures that need to be addressed” United States Department of Health and Human Services, Office for Civil Rights, Summary of the HIPAA Privacy Rule at 1, available at http: Flutra Limani, for appellant Jutkowitz.


The majority’s reliance on those cases is, in my view, misplaced. The Appellate Division subsequently granted defendants’ motion for leave to appeal, asking us whether its opinion and order were properly made. Uses and disclosures qualifying as permissive under the Privacy Rule are just that — for purposes of compliance with HIPAA, the covered entity is permitted, but not required, to use the information or make the disclosure see 65 Fed Reg[“29674othing in the rule requires covered entities to act on authorizations that they receive, even if those authorizations are valid.

Absent such legislative direction, we decline to limit the scope of such discovery here. While interviews may still take place post-note of issue, at that juncture in the litigation there is no longer any basis for judicial intervention to allow further pretrial proceedings absent “unusual or unanticipated circumstances” and “substantial prejudice” 22 NYCRR Always make sure you have this warning on your release authorizations provided to the defense.

In addition, a party may be granted an order to conduct the deposition of an adverse party’s treating physician “upon notice stating the circumstances or reasons such disclosure is sought or required” see CPLR [a][4]. Opinion by Judge Read.

No. Arons v Jutkowitz

The Appellate Division, Second Department, reversed Supreme Court’s order for the reasons stated in Arons, and denied defendants’ motions “without prejudice to making a motion in Supreme Court.

The form and content of my release authorizations were specially approved by Justice Gerald W. Plaintiffs counter that informal interviews of treating physicians are nonetheless impermissible because article 31 of the CPLR and part of the Uniform Rules do not identify them as a disclosure tool.

Plaintiffs also complain that in a more casual setting and without opposing counsel present, a physician might unwittingly divulge medical information as to which the privilege had not been waived, or might be gulled into making an improper disclosure.

Earlier this year, we had occasion to revisit Niesig when we decided Siebert v Intuit 8 NY3d []. The court opined that although plaintiff had waived the physician-patient privilege by bringing the lawsuit, defendants were entitled only to disclosure via the discovery devices enumerated in CPLR article 31 and the Uniform Rules for the New York State Trial Courts, which do not mention ex parte interviews, or mandate that a plaintiff execute authorizations permitting them.

An authorization must be written in plain language 45 CFR