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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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 We see no reason why a nonparty treating physician should be less available for an off-the-record interview than the corporate employees in Niesig or the former corporate executive in Siebert.

Stated authprization way, a covered entity, such as a physician, who releases a patient’s protected health information in a way permitted by the Privacy Rule does not violate HIPAA; however, neither the statute nor the Rule requires the physician to release this information 4. Northern Westchester Hospital Center65 A.

The court in Porcelli approved warnings on the release authorizations provided to the defense counsel that:. Always make sure you have this warning on your release authorizations provided to the defense.

Because trial courts are constrained to limit their supervision of disclosure to those devices delineated in Article 31, it likewise follows that Article 31 must provide some basis for the relief. 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.

New York Methodist Hospital, Respondent, et al. In response to defendants’ “assertions that ex parte interviews should not be permitted because of the dangers of overreaching,” we added the “cautionary note” that “it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically” id. Applying the basic principal of statutory construction “expressio unius est 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 records.

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

Citing Niesig, the Appellate Division reversed, and subsequently granted Siebert’s motion for authirization to appeal, asking us whether its order was properly made. 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. The interview is voluntary.


Further, although HIPAA did not alter state law regarding these private interviews, it had created a “practical dilemma” for defense counsel seeking to conduct them because physicians refused to talk with them absent a HIPAA-compliant authorization or court order id. 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 He alleged that two of the physician defendants failed to tell decedent that her MRI revealed hydrocephalus, thus delaying proper medical care for fourteen months as her health deteriorated.

The DOH authorizations contain NO warnings or information regarding the voluntary nature of the interview or the purpose of the interview. Next, the court conceded that while it had previously decided that a treating physician’s testimony could not be precluded at trial on the basis of ex parte interviews conducted after the filing of the note of issue, those decisions neither “declare[d] that defense counsel [had] a right to such informal, post-note of issue interviews,” nor “require[d] plaintiffs to consent to them” id.

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 NY2d[]; see also Hoenig v Westphal, 52 NY2d [] [physician-patient privilege waived by commencement of personal injury lawsuit].

Flutra Limani, for appellant Jutkowitz. Since the record indicated that protective steps had been taken and adhered to, we affirmed the Appellate Division and answered the certified question in the affirmative. Of course, it bears repeating that the treating physicians remain entirely free to decide whether or not to cooperate with defense counsel.

No. Arons v Jutkowitz

Accordingly, there should be no need for future judicial intervention to require them to do so. The defendant’s counsel need not disclose their conclusions, impressions or analysis of any of the statements. For the same “policy reasons articulated in Niesig concerning the importance of informal discovery,” we held that “so aron as measures are taken to steer clear of privileged or confidential information, adversary counsel may conduct ex parte interviews of an opposing party’s former employee” id.

Our holding today grants defense counsel the unprecedented ability to compel a plaintiff, who has placed his or her mental or physical condition in controversy, to execute authorizations allowing defense counsel to speak to authorizatino or her treating physicians outside the formal discovery process and without the plaintiff being present.


This scheme ensures that all parties, including the litigant whose mental or physical condition is in controversy, are fully cognizant of the medical information in the possession of the other parties. Our holding today substantially modifies this carefully crafted scheme by allowing one authorizaion to unilaterally obtain, in a manner not authorized by Article 31, information about an adverse party’s medical condition.

The executive stated that he understood the admonitions; the record did not indicate that any privileged information had, arins fact, been disclosed. OCR carries out this responsibility by investigating complaints against covered entities, conducting compliance reviews and performing education and outreach to foster compliance see generally 45 CFR partsubparts C, D, E.

Plaintiff, who weighed pounds at the time of her surgery, lost ahthorization afterwards.

Order reversed, with costs, defendants’ motion to compel plaintiff to provide the subject authorizations granted in accordance with the opinion herein and certified question answered in the negative. Attorneys have always sought to talk with nonparties who are potential witnesses as part of their trial preparation.

But this concern is tempered by the fact that plaintiffs now know that they cannot legitimately refuse to sign these HIPAA-compliant authorizations. By the time a case has been certified as ready for trial, the defendant should have a firm grasp of the plaintiff’s medical condition after deposing the plaintiff, perusing the plaintiff’s medical information and defense counsel’s own medical examination of plaintiff and conferring with its own expert.

In the appeals now before us, defendants forwarded to plaintiffs Autgorization compliant authorizations permitting their treating physicians to discuss the medical condition at issue in the litigation with defense counsel.

Now, for the first time ever, this book exists. Before commencing the interview, Intuit’s lawyers cautioned the executive not to reveal privileged or confidential matter, specifically including any conversations with Siebert’s attorneys, or information about Siebert’s litigation strategy.

Connolly in Chapman v.

Again, we “assume[] that attorneys would make their identity and interest known to interviewees and comport themselves ethically” Niesig, 76 NY2d at Non-party treating physicians have no idea what topics autyorization off-limits in the private meetings with defense counsel.

Absent such legislative direction, we decline to limit the scope of such discovery here.