APPEAL by the defendant Melissa Tsai in an action, inter alia, to recover damages for medical malpractice, etc., as limited by her brief, from so much of an order of the Supreme Court (Francis A. Nicolai, J.), entered June 5, 2008, in Westchester County, as, upon granting that branch of her motion which was to compel the plaintiffs to provide authorizations compliant with the Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.) for three nonparty doctors with whom she sought ex parte interviews, in effect, granted what was, in effect, a cross application by the plaintiffs to include certain specified language in the authorizations.
The opinion of the court was delivered by: McCARTHY, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., HOWARD MILLER, EDWARD D. CARNI & WILLIAM E. McCARTHY, JJ.
On this appeal, we are presented with the principal question of whether a plaintiff may include, directly on the authorizations he or she provides to nonparty treating physicians in compliance with the Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.; hereinafter HIPAA), a statement that the purpose of an informal, ex parte interview sought by defense counsel is solely to assist defense counsel at trial and that participation is voluntary. We find that, consistent with Arons v Jutkowitz (9 NY3d 393), such information may be included directly on the HIPAA-compliant authorization form.
The plaintiff Teresa Porcelli (hereinafter the plaintiff), individually and as the mother and natural guardian of the infant plaintiff, commenced this action, inter alia, to recover damages for medical malpractice and alleged negligence in the care and treatment of her daughter, at or near the time of her birth on November 14, 2000. On her own behalf, the plaintiff also asserts a derivative cause of action. The plaintiff alleged that as a result of the negligent performance of perinatal intubation and suctioning of the infant plaintiff performed by the defendants Northern Westchester Hospital Center (hereinafter the hospital), Drs. Stacey Allison Madoff, Ephraim Brian Russell, and Melissa Tsai (hereinafter collectively the defendants), the infant plaintiff sustained a perforation of her pharynx, which caused her to develop pneumonia and infections, required her to undergo surgery to repair the perforation, and subsequently caused her to develop, among other things, asthma, and conditions requiring an extended course of antibiotics.
In the course of discovery, it was revealed that the infant plaintiff had received and continued to receive care and treatment from Drs. Emily Puntillo and John Costa at the Mt. Kisco Medical Group (hereinafter Mt. Kisco), and had undergone surgery performed by Dr. Charles Stolar. After jury selection in the matter had been scheduled, in a letter dated February 28, 2008, counsel for Tsai requested HIPAA-compliant authorizations from the plaintiff for the release of the infant plaintiff's updated records of Mt. Kisco and Stolar, and for the records of Drs. Puntillo and Costa. Tsai's counsel also requested that the plaintiff authorize ex parte interviews with Drs. Puntillo, Costa, and Stolar (hereinafter collectively the treating physicians) in accordance with Arons v Jutkowitz (9 NY3d 393). By letter dated March 14, 2008, Tsai's counsel indicated he was still awaiting an authorization from the plaintiff allowing him to speak with the treating physicians. On March 31, 2008, after the plaintiff failed to provide the requested authorizations allowing Tsai to speak with the treating physicians, Tsai moved, inter alia, to compel the plaintiffs to comply with her demand for those HIPAA-compliant authorizations. The hospital submitted an affirmation of its counsel in support of the motion.
In opposition, the plaintiff, through the affirmation of her counsel, conceded that Tsai was entitled, pursuant to Arons, to interview the treating physicians. However, she, in effect, made a cross application to include certain specified language in the applications, contending that, pursuant to Arons, the authorizations provided to each of the treating physicians should state: "The purpose of the requested interview with the physician is solely to assist defense counsel at trial."The physician is not obligated to speak with defense counsel prior to trial. The interview is voluntary." Consequently, the plaintiff asserted that she would include such language directly on the authorizations. Appended as exhibits to the affirmation were authorizations for the requested ex parte interviews, each of which contained the following handwritten language, which was highlighted in yellow: "The purpose of the requested interview with the physician is solely to assist defense counsel at trial. The physician is not obligated to speak with defense counsel prior to trial. The interview is voluntary."
In reply, Tsai submitted an affirmation of her counsel contending that Arons was silent on whether such language was required or even authorized to be placed directly on the HIPAA-compliant authorizations. Quoting Arons, Tsai's counsel noted that the onus is on defense counsel to provide the admonitions expressed in the challenged language: "an attorney who approaches a nonparty treating physician (or health care professional) must simply reveal these clients' identity and interest, and make clear that any discussion with counsel is entirely voluntary and limited in scope to the particular medical condition at issue in the litigation." Tsai's counsel further averred that inclusion of the challenged language in the authorizations themselves would chill any cooperation and imply that the plaintiff preferred non-cooperation, which he contended was especially true here, since the plaintiff highlighted the disputed language with yellow marker, thereby conveying an "unmistakable message" that the plaintiff preferred non-cooperation.
In an order entered June 5, 2008, the court granted that branch of Tsai's motion which was to compel the plaintiffs to provide authorizations, and directed the plaintiffs to provide the HIPAA-compliant authorizations, and, in effect, granted what was, in effect, a cross application by the plaintiffs and directed that such authorizations "shall contain" the challenged language. In its analysis, the court noted that in one of the orders reviewed and affirmed in Arons, the Supreme Court had ordered the inclusion of similar language directly on the authorizations. Thereafter, the court denied Tsai's motion for leave to reargue. Tsai appeals from the order entered June 5, 2008.
In Arons v Jutkowitz (9 NY3d 393), which involved three separate medical malpractice actions, the Court of Appeals held that there was no general prohibition against defense counsel conducting an ex parte interview with a nonparty physician, even after a note of issue had been filed, provided counsel complied with the procedural prerequisites set forth in the HIPAA Privacy Rule (45 CFR parts 160, 164), and with limitations set forth in analogous case law concerning interviews with, for example, employees of corporations (see e.g. Muriel Siebert & Co., Inc. v Intuit, Inc., 8 NY3d 506; Niesig v Team I, 76 NY2d 363). The HIPAA Privacy Rule forbids an organization subject to its requirements ("covered entity" [45 CFR 160.103, 164.10(a), 164.502(a)]) from using or disclosing an individual's health information ("protected health information" [45 CFR 160.103]), except as mandated or permitted by its provisions.
In Arons v Jutkowitz, the first of the three medical malpractice actions, the Supreme Court granted a motion to compel the plaintiff to provide HIPAA-compliant authorizations permitting a defendant doctor to conduct a post-note of issue interview with the decedent's treating physician, with the following conditions: " the authorization[s] must, on [their] face state in BOLD letters that the purpose of the interview is to assist the defendants in defense of a lawsuit and it is not at the request of the plaintiff. The authorization[s] must contain the name and address of the person to whom the health care provider may give an interview if he or she wishes and must identify the persons or entities the interviewer is representing and must conform in all respects to 45 CFR § 164.508(c) [the relevant HIPAA regulations]. The authorizations may not be combined with a subpoena and there must be a separate authorization for each interview." Within 72 hours after the interview, the defendant must provide the plaintiff with any and all written statements, materials or notations and any document obtained from the interviewed health care provider, as well as copies of any memoranda, notes, audio or video recordings of any oral statements made by the health care provider. The defendant's counsel need not disclose their conclusions, impressions or analysis of any of the statements'" (Arons v Jutkowitz, 9 NY3d at 403, quoting Arons v Jutkowitz, 2005 NY Slip Op ...