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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As was the case in Arons, these conditions included a direction for defense counsel authorisation hand over to his adversary copies of all written statements and notations obtained from the physicians during the private interviews, as well as any audio or video recordings or transcripts, and interview memoranda or notes excluding the attorneys’ observations, impressions or analyses.

The Appellate Division subsequently granted defendants’ motion for leave to appeal, asking us whether its decision and order were properly made.

We see no reason why a nonparty treating physician authorzation be less available for an off-the-record interview than the corporate employees in Niesig or the former corporate authorizatipn in Siebert. 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 In sum, 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 the particular medical condition at issue in the litigation.

The Power of a System: For instance, a party conducting a physical or mental examination of the litigant must provide a copy authorizatipn the report setting forth the examining physician’s findings and conclusions to every other party to the action CPLR [b]; 22 NYCRR In Kish, plaintiff, as administrator of decedent’s estate, alleged that defendant physicians did not authorziation diagnose and treat decedent for perineal necrotizing faciitis, resulting in his death.

Finally, we understand that, in fact, for many years trial attorneys in New York have engaged in the practice of interviewing an adverse authorizaton treating physicians ex parte, particularly in malpractice actions, although only after a note of issue was filed see Anker v Brodnitz, 98 Misc 2d [], aff’d on opn arns 73 AD2d [2d Dept ], lv dismissed 51 NY2d[]; see also Vogel v Jewish Hosp. The court reasoned that by commencing the medical malpractice action, plaintiff put his late wife’s medical condition into play, thus waiving her physician-patient privilege; that defendants were permitted to interview a plaintiff’s treating physicians, “but only after the note of issue [had] been filed”; and, citing several authorizzation court decisions, that “HIPAA regulations require authorizations from the plaintiff in order for the defendants to conduct post-discovery interviews with treating physicians.

Article 31 does not “close off” these “avenues of informal discovery,” and relegate litigants to the costlier and more cumbersome formal discovery devices Niesig, 76 NY2d at Authorkzation the same time, this shift away from paper-based to systematized electronic records was perceived to threaten the confidentiality of sensitive patient information.

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

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. New York Methodist Hospital, Respondent, et al.


The form and content of my release authorizations were specially approved by Justice Gerald W. 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. Imposition of these conditions was improper.

Costly formal depositions that may deter litigants with limited resources, or even somewhat less formal and costly interviews attended by adversary counsel, are no substitute for such off-the-record private efforts to learn and assemble, rather than perpetuate, information”. Our holding today substantially modifies this carefully crafted scheme by allowing one party to unilaterally obtain, in a manner not authorized by Article 31, information about an adverse party’s medical condition.

Accordingly, the Privacy Rule does not prevent this informal discovery from going forward, it merely superimposes procedural prerequisites.

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.

This waiver is called for as a matter of basic fairness: The Appellate Division, Second Department, reversed Supreme Court’s order for the reasons stated in Arons, aithorization denied defendants’ motions “without prejudice to making a motion in Supreme Court.

Earlier this year, we had occasion to revisit Niesig when we decided Siebert v Intuit 8 NY3d []. 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].

Further, the Court commented that it was “obvious that the plaintiff’s personal interests in achieving a financial and a tactical advantage in the litigation [were] the real policies which would be advanced by acceptance of his argument” id.

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

Of course, it bears authorizstion that the treating physicians remain entirely free to decide whether or not to cooperate with defense counsel. Barbara DeCrow Goldberg, for aros Fulop. The trial court denied the plaintiff’s request; the Appellate Division modified by limiting the ban on ex parte interviews to the corporation’s current employees, concluding that they were “presumptively within the scope of the representation afforded” by the corporation’s attorneys in the litigation Niesig v Team I, AD2d 94, 95 [2d Dept uathorization.

Finally, the trial court orders in Arons and Webb included stipulations not required by HIPAA and inconsistent with Niesig and Siebert — specifically, a direction for defense counsel to hand over to his adversary copies of all written statements and authodization obtained from the physician during the private interviews, any audio or video recordings or transcripts, and interview memoranda or notes excluding the attorneys’ observations, impressions or analyses.

Plaintiffs also complain that in a more casual setting and without opposing counsel present, a physician might unwittingly divulge medical information as authorizatiion which the privilege had not been waived, or might be gulled into making an improper disclosure. The certified questions should be answered in the negative. 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: Supreme Court granted the motion and directed plaintiff aeons provide the authorizations, subject to the following conditions:.


No. Arons v Jutkowitz

We pointed out that the Appellate Division’s blanket ban was undesirable because it would. Any attempt to do so renders this authorization VOID. Plaintiff, who weighed pounds at the time of her surgery, lost pounds 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. Northern Westchester Hospital Center65 A. Again, we “assume[] that attorneys would make their identity and interest known to interviewees and comport themselves ethically” Niesig, 76 NY2d at 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.

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.

For that reason among othersI include the following language in my standard defense medical authorization: As the dissenting Justices pointed out in Kish, choking off informal contacts between attorneys and treating physicians invites the further unwelcome consequence of “significantly interfering with the practice of medicine”: 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.

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.

Neither Niesig nor Siebert involved a party’s invocation of Article 31 to obtain the informal interviews, nor did the parties in those cases need the assistance of the opposing party.

The particular question put to us was whether these employees were considered “parties” under Disciplinary Rule A 1 of the Code of Professional Responsibility, which prohibits an attorney from communicating directly with a “party” known to have counsel in the matter. There is no doubt that the enactment of HIPAA uncovered a practice whereby physicians who may have at one time spoken informally with defense counsel are no longer able to do so without a signed HIPAA authorization.

I believe that both of these practices are improper. This was entirely proper. Nonetheless, that does not mean that this Court should sanction that conduct and afford defense counsel a disclosure device that is not authorized by either Article 31 or the Uniform Rules. An authorization must be written in plain language 45 CFR Absent such legislative direction, we decline to limit the scope of such discovery here.

The court subsequently granted defendants’ motion for leave to appeal, asking us whether its order was properly made.

A covered entity presented with an authorization is permitted to make the disclosure authorized, but is not required to do so”].