Victor J. CHARLAP, Individually and as Administrator of the Estate of Lisa M. Charlap, Plaintiff
Mateen KHAN, M.D.; Buffalo Emergency Associates, LLP; Mercy Hospital of Buffalo and Catholic Health System, Inc., Defendants.
[972 N.Y.S.2d 872]
Brown Chiari, Michael R. Drumm, Esq., of Counsel, for Plaintiff.
The Tarantino Law Firm, Brian Weidner, Esq., of Counsel, for Defendants Mateen Khan, M.D. and Buffalo Emergency Associates, LLP.
Damon Morey, LLP, Anthony Pegnia, Esq., of Counsel, for Defendants Mercy Hospital of Buffalo and Catholic Health System, Inc.
JOHN M. CURRAN, J.
Defendants, Mercy Hospital of Buffalo (" Mercy" ) and Catholic Health System, Inc. (" CHS" ), have moved by Order to Show Cause for an Order " compelling plaintiff to send correspondence to decedent's non-party health care providers retracting his request to be present during defense counsel's private interviews." Defendants, Mateen Khan, M.D. (" Khan" ) and Buffalo Emergency Associates, LLP (" BEA" ), have moved by Order to Show Cause for an Order " compelling plaintiff to send letters to non-party health care providers retracting his objectionable request to be present, or for his attorney to be present, during defendants' private interviews, which defendants have a right to conduct, without interference, pursuant to Arons v. Jutkowitz ." 
This medical malpractice action was commenced in November of 2009. The action arises out of the medical treatment rendered to plaintiff's decedent, Lisa Charlap, in the emergency room department at Mercy on July 21, 2007. Plaintiff asserts causes of action for negligence and wrongful death, alleging that defendants were negligent in failing to properly diagnose and appropriately treat the decedent, resulting in her death on November 10, 2007.
Defendants have requested HIPAA -compliant Arons " speaking authorizations" permitting their attorneys to speak with decedent's non-party health care providers. Defendants have come into possession of correspondence from the plaintiff, Victor Charlap, addressed to one of decedent's treating physicians. The letter from plaintiff dated August 13, 2013, states:
I am writing to you regarding a lawsuit that has been commenced on behalf of my late wife, Lisa Charlap, which is listed above. The attorneys for the defendants in this lawsuit have indicated that they intend to contact you, and will attempt to meet with you to discuss the medical treatment you have provided, and perhaps other issues that relate to this lawsuit.
Although I am required to provide these defense lawyers with a written authorization permitting them to contact you, [972 N.Y.S.2d 873] the law does not obligate you in any way to meet with them or talk with them. That decision is entirely yours. If you decide to meet with their lawyers, I would ask that you let me know, because I would like the opportunity to be present or to have my attorneys present.
Defendants argue that they have a right to privately interview decedent's treating physicians and that the letter from plaintiff interferes with this right. According to defendants, because the letter was an improper interference with their rights, the Court should fashion a remedy by ordering plaintiff to send correspondence to decedent's non-party health care providers retracting his request to be present during defense counsel's private interviews of those health care providers. The trial is scheduled to commence in late October of this year.
The subject of private interviews of personal injury plaintiffs' treating physicians by defense counsel has a lengthy history ( see Molly Klapper, Outside Counsel, Chipping Away at " Anker" Doctrine, N.Y.L.J., Sept. 18, 1996 at 22, col. 4; Patrick M. Connors, New York Practice, Appellate Division is Confronted with HIPAA, N.Y.L.J., Jun. 17, 2007 at 4, col. 4). This Court has summarized the early cases on this subject as standing " for the proposition that a defense counsel's desire to informally interview a plaintiff's treating physician is not authorized by any statute or rule and therefore the courts do not involve themselves" ( Holzle v. Healthcare Servs. Group, Inc., 7 Misc.3d 1027[A], 2005 N.Y. Slip Op. 50770[U], ***8, 2005 WL 1252597 [Sup.Ct., Niagara County 2005] ). This Court also observed that the Appellate Division later limited the earlier cases by holding " that there is no ethical or legal prohibition against interviewing plaintiff's treating physicians in personal injury actions when the interviews occur after the note of issue has been filed" but that " none of these cases required a plaintiff to consent to the interviews" ( Holzle, 7 Misc.3d at ***9) (emphasis in original).
After HIPAA and its Privacy Rule  were implemented in 2002, a practical problem arose for defense counsel seeking post-note of issue interviews because physicians insisted on an authorization or a court order permitting the oral communication under HIPAA ( Holzle, 7 Misc.3d at ***11). The trial courts devised " widely varying approaches" in addressing this practical problem (Thomas A. Moore and Matthew Gaier, Medical Malpractice, Recent Cases on Ex Parte Interviews With Treating Physicians, N.Y.L.J., Oct. 4, 2005 at 17, col. 3).
In Holzle, this Court concluded that a plaintiff's privacy rights under HIPAA should be deemed waived just as the Court of Appeals deemed the physician-patient privilege waived in Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 250 N.E.2d 857 . While imperfect, this Court adopted an approach which was consistent with existing Appellate Division authority and avoided requiring post-note of issue authorizations or court orders not authorized by statute or rule. This Court perceived that such a resolution of the issue also maintained:
[972 N.Y.S.2d 874] ... a wise policy of non-involvement in activities which are not formal disclosure authorized by the CPLR or the Uniform Rules. The courts should not become involved in post-note of issue trial preparation matters and should not dictate to plaintiffs or defense counsel the terms under which interviews with non-party witnesses may be conducted.
In Arons, the Court of Appeals held that an attorney may privately interview an adverse party's treating physician when the adverse party has affirmatively placed his or her medical condition in controversy. The Court observed that " there are no statutes and no rules expressly authorizing— or forbidding— ex parte discussions with any non-party ..." and that its " decisions plainly permit informal discovery ..." (9 N.Y.3d at 409, 850 N.Y.S.2d 345, 880 N.E.2d 831).
The Court also addressed plaintiff's concern " that in the more casual setting 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" (9 N.Y.3d at 410, 850 N.Y.S.2d 345, 880 N.E.2d 831). The Court drew from its decisions in Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 558 N.E.2d 1030  and Muriel Siebert & Co., Inc. v. Intuit, Inc., 8 N.Y.3d 506, 836 N.Y.S.2d 527, 868 N.E.2d 208  to assume " that attorneys would make their identity and interest known to interviewees and comport themselves ethically" ( Niesig, 76 N.Y.2d at 376, 559 N.Y.S.2d 493, 558 N.E.2d 1030). On this basis, and consistent with Code of Professional Responsibility DR 7-104(a)(2), the Court in Arons stated:
An attorney who approaches a nonparty treating physician (or other health care professional) must simply reveal the client's identity and interest, and make clear that any discussion with counsel is entirely voluntary and limited in scope to ...