[*1]
Valli v Viviani
2005 NY Slip Op 50409(U)
Decided on March 31, 2005
Supreme Court, Suffolk County
Molia, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 31, 2005
Supreme Court, Suffolk County


Donna Valli, Plaintiff,

against

John R. Viviani, DDS, Defendant.




26777-2001

Denise F. Molia, J.

Ordered that this motion by the defendant to compel the plaintiff to execute a release as outlined in the decision of Justice Maltese in the case of Keshecki v. St Vincent's Medical Center permitting counsel for the defendant to interview, as a possible witness for trial, plaintiff's treating physician, Dr. Richard Greenfield, and to provide authorizations for records to be used at trial is decided as follows:

This action is currently on the Calendar Control Part ready day calendar for April 14, 2005. In anticipation of trial the attorney for the defendant requested that the plaintiff sign a release permitting him to interview plaintiff's treating physician in preparation for calling him as a expert witness at trial and to provide HIPAA compliant authorizations for records to be used at trial. The practice prior to the enactment of the Federal Health Insurance Portability and Accountability Act, known as HIPAA, was to serve a trial subpoena upon a treating doctor who may be a witness for the defendant at trial and for counsel to interview and prepare said witness for trial (Zimmerman v. Jamaica Hosp., Inc., 143 AD2d 86, 531 NYS2d 337). Recent trial level case law interpreting HIPAA has called into question the continuance of this practice. [*2]

The law in New York is that a party by bringing or defending a personal injury actions in which his or her mental or physical condition is affirmatively put in issue waives the physician-patient privilege set forth in CPLR §4504 ( Koump v. Smith, 25 NY2d 287, 303 NYS2d 858, 250 NE2d 857). Whether or not a particular condition has been put in issue by the pleadings is for the court to determine. Thus medical disclosure is restricted to that obtainable pursuant to statute, court rule, or express consent of the parties (Anker v. Brodnitz, 98 Misc2d 148, 413 NYS2d 582). Private interviews with treating physicians are barred during the pre-note of issue phase of the trial where defendant must resort to the use of formal discovery procedures. However, as noted above, such private interviews are permitted during the trial stage of the litigation (Levande v. Dines,153 AD2d 671, 544 NYS2d 864).

In September 2004, the Richmond County Supreme Court in a case called Keshecki v. St. Vincent's Medical Center, 5 Misc 3d 539, 785 NYS2d 300, barred the opinion testimony at trial of two treating doctors in a medical malpractice action because the defendant's counsel had conducted an unauthorized post note of issue interview with said physicians pursuant to a trial subpoena where counsel had not obtained an authorization for a private interview. The court reasoned that HIPAA preempts state law concerning private health information and essentially overruled the holding of the Appellate Division, Second Department in Levande v. Dines, supra . The court then went on to legislate a procedure to be followed which would in the court's opinion be compliant with HIPAA. This protocol was initially set forth in an unpublished decision by Justice James Dollard known as Beano v. Post (Index Number 5694-2001, March 12, 2004, Queens County Supreme Court). The Kreshecki court held:

This court agrees with Justice Dollard's decision in Beano holds that in order to comply with the federal HIPAA privacy rules a defendant's counsel who wishes to interview a plaintiff-patient's treating health care provider must comply with the following provisions: 1. Defense counsel must obtain an authorization separate and apart from any other authorization; and 2. The authorization on its face should state in BOLD letters that the purpose of the disclosure is not at the request of [the plaintiff] patient; and 3. The purpose should be stated in BOLD print that: "The purpose of the information is to assist the defendant in defense of a lawsuit brought by the plaintiff"; and 4. The authorization must contain the name and business address of the person to whom the health care provider or hospital employee may give an interview and identify the persons or entities the interviewer is representing (see 45 CFR § 164.508[c][iii] ); and 5. The authorization must conform to all of the core elements and requirements of 45 CRF § 164.508[c]; and 6. There shall be a separate authorization for each interview and the authorization shall not be combined with a subpoena, which only acts to intimidate the doctor. Within five (5) days after the interview, whether in person or on the telephone or by any other manner which technology allows, the defendant must provide the plaintiff [*3]with: 1. Any and all written statements, materials or notations and any document obtained from the interviewed health care provider; and 2. Copies of any memorandums, notes, audio or video recording, which records any oral or written statements made of the health care provider. The defendant's counsel need not disclose their observations, conclusions, impressions or analysis of any of the statements. [2] If after all of the above steps are complied with, the defense attorney chooses to call the plaintiff's treating physician as either a fact witness or as an expert witness, pursuant to NY CPLR § 3101(d) notice, the defense attorney shall not be precluded from conducting subsequent private discussions with the physician in preparation for their trial testimony and the contents of such further discussions need not be disclosed.(Keshecki v. St. Vincent's Medical Center, supra at 305).


After Keshecki, the New York County Supreme Court in Browne ex rel. Estate of Browne v. Horbar, 6 Misc 3d 780, —- NYS2d ——, 2004 WL 2827657, refused to issue a protective order to permit a post note of issue interview with a treating doctor. Although discussing the impact of HIPAA and Keshecki, the court limited its opinion to a narrow holding that to issue such an order would permit post note of issue discovery without fidelity to the CPLR disclosure devices. In January of this year, the Monroe County Supreme Court in the case of Steele v. Clifton Springs Hosp. and Clinic, 788 NYS2d 587, directed that authorizations be provided under the conditions set forth in Keshecki adding the following:
Finally, in addition to the before listed conditions, any authorization shall be specifically and expressly limited to disclosure of the medical conditions and their sequella which are at issue in this lawsuit. The authorization shall also conspicuously indicate that the interview is voluntary, rather than mandatory on the doctor's part (Steele v. Clifton Springs Hosp. and Clinic, supra 590).


In Steele, Justice Robert J. Lunn, clearly disagreed with the holding in Keshecki that HIPAA preempted state law including the Appellate Department Second Department holding in Levande v. Dines, supra permitting post note of issue private interviews. He wrote: ...HIPAA itself provides no impediment to the relief sought by defendants. The regulations promulgated under HIPAA provide that under certain conditions, "A covered entity may disclose protected health information in the course of any judicial or administrative proceeding" (45 CFR § 164.512[e] ). It is debatable whether a private interview against plaintiff's wishes with his or her treating physicians constitutes a "judicial or administrative proceeding" sufficient to allow the interview to take place absent an express authorization by the patient. However, in order to foster the truth seeking function of a trial and in order to ensure fundamental fairness [*4]and a level playing field, a plaintiff should not be allowed to simply refuse to provide an appropriate authorization to defendants yet seek to interview these same health care providers for potential trial testimony.

This court agrees with Justice Lunn in Steele that HIPAA does not preempt state law which clearly permits post note of issue interviews with treating physicians. What the decision in Kreshecki v. St. Vincent's Medical Center has done is place the onus to enforce HIPAA upon the trial justice. Should a doctor's testimony be precluded at trial because he or she granted an interview pursuant to a trial subpoena without obtaining the assurances required by HIPAA? HIPAA expressly permits a doctor to disclose protected health information in the course of any judicial proceeding in response to a subpoena if the doctor is assured that his patient received notice of the request or that the defendant attorney secured a protective order. The doctor may also respond to the subpoena if he or she notifies the patient himself or seeks a qualified protective order [45 CFR §164.512 (e)]. Certainly the conditions set forth in Keshecki are a judicial attempt to preemptively set forth what one court deems compliance with the federal regulation. However, the regulation provides essentially that the defendant's counsel provide the doctor with a written statement that he gave notice to the patient/plaintiff in time for him or her to raise an objection to the court and that sufficient time has elapsed without objections being made.

The service of a trial subpoena may be challenged by a motion to quash (CPLR §2304). A doctor without the proper assurances may certainly bring such a challenge. Under such circumstances the court could properly consider the conditions for permitting the testimony at trial and the interview in preparation for trial. The New York statutes were recently amended to require that notice of any subpoena duces tecum

be given to all parties CPLR § 2303(a). A similar amendment in the case of trial witness subpoenas would insure that the plaintiff had notice of the subpoena.

Accordingly, this court declines to follow the holding in Keshecki. Such legislation on the part of the courts leads only to more confusion among litigators and doctors as to how any individual court will proceed. It is for the legislature to determine if an amendment to CPLR is warranted to protect a plaintiff's health information. Until such time, it is the law in the Second Department that post note of issue interviews with treating physicians are proper. Counsel would be wise to follow the notice requirement under HIPAA upon service of the trial subpoena. Plaintiff is directed to provide HIPAA compliant authorizations for trial records.

Dated: March 31, 2005 _______________________________________

J.S.C.