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Keshecki v. St. Vincent's Medical Center9/24/2004
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The defendants are precluded from introducing opinion testimony from two of the plaintiff's treating doctors in this medical malpractice action because of an unauthorized interview of those physicians by the defendants' counsel. This remedy is being used to stop attorneys from approaching the plaintiff's treating doctors in violation of the patient's qualified rights of privacy that are guaranteed by Health Insurance Portability and Accessibility Act of 1996 ("HIPAA").
Facts
On September 6, 2002, the plaintiff signed an authorization permitting Richmond Orthopedic Associates, a medical group which employs her treating physician, Dr. N. Jayaram, to release medical records to the defendants. On November 9, 2002, plaintiff signed an authorization permitting her treating physician, Dr. Brian Maloney, to release medical records to the defendants. On February 4, 2004 the plaintiff signed an authorization allowing defendants to obtain information from Dr. Maloney and to use that information for legal purposes. The first authorization regarding Dr. Maloney states that " ou are not authorized to write a report or to give interviews to the party presenting this authorization." The more recent authorization contained no such limitation.
Defendants' counsel served subpoenas upon Dr. Jayaram and Dr. Maloney. Pursuant to the aforementioned authorizations and subpoenas, defense counsel met with Dr. Jayaram on March 15, 2004. Thereafter, a Witness Response as to Dr. Jayaram was served upon plaintiff on March 24, 2004. On June 21, 2004, defense counsel met with Dr. Maloney. A Witness Response as to Dr. Maloney was served on July 9, 2004.
The plaintiff has moved for a protective order pursuant to NY CPLR 3103(c) to suppress the defendant's witness response dated March 24, 2004 and notice of witness dated July 13, 2004, and for an order of preclusion on the grounds that this information was improperly obtained. That motion is granted.
Discussion
This is a medical malpractice action against the plaintiff's obstetrician. According to the plaintiff, the defendant never informed plaintiff of the size of the fetus in comparison to her pelvic opening and then failed to perform a caesarian section during the delivery of the plaintiff's infant. As a result, the infant delivery was problematic, with shoulder distoscia. According to the plaintiff, she demanded a caesarian section rather than risk harm to the baby or herself. These pleas were denied by the defendant and a McRobert's maneuver was performed, which resulted in repositioning the pelvic opening and delivering the infant. According to the plaintiff, the alleged malpractice caused a diastasis of the symphysis pubis; a separation of her pelvis, with resultant pain which has continued to affect the plaintiff.
Defense counsel, Timothy Lenane, Esq., discussed the plaintiff's conditions with her treating physicians, Dr. Brian Maloney and Dr. N. Jayaram. After the plaintiff's attorney discovered that these conversations had taken place, he contacted defense counsel and left a message directing Mr. Lenane to refrain and desist from conducting any further interviews of the plaintiff's treating physicians unless specifically authorized by the plaintiff in a signed and notarized authorization document. Notice was received from Mr. Lenane of his intention to continue contacting the plaintiff's doctors.
The physician/patient confidentiality privilege has been codified for over one hundred and seventy-five years. The confidentiality statute has been extended to other health
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