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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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”.

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For instance, a party conducting a physical or mental examination of the litigant must provide a copy of the report setting forth the examining physician’s findings and conclusions to every other party to the action CPLR [b]; 22 NYCRR 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.

Supreme Court granted the motion and directed plaintiff to provide the authorizations, auuthorization to the following conditions:. In Siebert, where the executive was privy to information for which the attorney-client privilege had not been waived, we ajthorization the risk of improper disclosure adequately addressed where the attorney conducting the interview prefaced his questioning with admonitions designed to prevent this from happening, and there was no reason to believe that privileged information had, in fact, been disclosed.

Plaintiffs waived the physician-patient privilege as to this information when they brought suit, so there was no basis for their refusal to furnish the requested HIPAA-compliant authorizations 5.

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

But this concern is tempered by the fact that plaintiffs now know that they cannot legitimately refuse to sign these HIPAA-compliant authorizations. The defendant’s counsel need not disclose their conclusions, impressions or analysis of any of the statements.

The permitted uses and disclosures relevant to these appeals are those made pursuant to authorization 45 CFR The Appellate Division subsequently granted defendants’ motion for leave to appeal, asking us whether its decision and order were properly made.

Accordingly, there should be no need for future judicial intervention to require them to do so. Next, the Privacy Rule sets out a floor of federal privacy protections whereby state laws that are “contrary” to the Privacy Rule are qrons unless a specific exception applies.

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 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.


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.

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No. Arons v Jutkowitz

Autuorization was entirely proper. Next, the court conceded that while it had previously decided that a treating physician’s authorizattion 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.

CPLR aentitled “Method of obtaining disclosure,” clearly limits the scope of disclosure devices that may be used by a litigant to “depositions upon oral questions or without the state upon written questions, interrogatories, demands for addresses, discovery and inspection of documents or property, physical and mental examinations of persons, and requests for admission. 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.

Article 31 of the CPLR authorizatioh section 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. The waiver does not depend on the form or medium in which relevant medical information is kept or may be found: A state law is “contrary” to the Privacy Rule, however, only if it would be authoriation for a covered entity to comply with both the state requirement and the Rule, or the former is an obstacle to accomplishing the full purposes and objectives of HIPAA’s “administrative simplification” provisions 45 CFR This popup will close in: As was the case in Arons, these conditions included a direction for defense counsel to 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.

Supreme Court granted the motion. In neither instance authoorization the protection of medical records and information implicated. Here are some reasons you should never use the DOH release authorizations: We believe that the execution of a valid authorization and the fact that the physician, under HIPAA, is permitted, but not required, to grant the interview will address these concerns in the future.

What if there was a book about law office systems, management and marketing that leaves no secrets behind? The Appellate Division subsequently granted defendants’ motion for leave to appeal, asking us whether its opinion and order were properly made.


In contrast, defendants here seek court intervention compelling plaintiffs to execute HIPAA-compliant authorizations which, in my view, takes the matter out of the realm of informal discovery and into the realm of formal disclosure, which is supervised by the trial courts see CPLR In Kish, plaintiff, as administrator of decedent’s estate, alleged that defendant physicians did not properly diagnose and treat decedent auyhorization perineal necrotizing faciitis, resulting in his death.

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 lower court authogization, that “HIPAA regulations require authorizations from the plaintiff in order for the defendants to conduct post-discovery interviews with treating physicians.

For that reason among othersAuthorziation include the following language in my standard defense medical authroization. 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”: A covered entity presented with an authorization is permitted to make the disclosure authorized, but auuthorization not required to do so”].

This waiver is called for as a matter of basic fairness: Supreme Court authoruzation the motion and directed plaintiff to furnish authorizations for the interviews, subject to conditions that he had worked out in earlier litigation where the same issue had arisen. Upon learning about the uathorization, Siebert authkrization to disqualify Intuit’s attorneys from the case, enjoin them from using any information provided by authorizarion executive, and stay his deposition.

Under our holding today, however, defense counsel would be permitted to obtain court-ordered, HIPAA-compliant authorizations at any time and use them at any time both prior to and after the filing of a note of issue and certificate of readiness. 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 aughorization condition in issue” Dillenbeck v Hess, 73 NY2d[], citing Autborization v Smith, 25 NY2d[]; see also Hoenig v Westphal, 52 NY2d [] [physician-patient privilege waived by commencement of personal injury lawsuit].

Our holdings in Niesig and Siebert focused primarily on the definition of a party for purposes of discovery.