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Smith v. Rafalin3/24/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Defendants Yefim Vaynshelbaum and Park Avenue Medical Imaging & Mammography, P.C., move for an order pursuant to 45 C.F.R. Section 164.512(e)(1)(I) and 45 C.F.R. Section 164.508 for an order directing plaintiff to provide authorizations permitting defense counsel to speak privately with certain subsequent treating physicians who rendered care to the plaintiff related to claims being made in this medical malpractice action, if the physicians voluntarily agree to the interview. If granted, the application raises ancillary issues as to whether defense counsel would have to turn over any notes or recordings of their conversations with the physicians and as to any limiting language in the authorizations.
The issue of whether defense counsel should, post HIPAA, be permitted to interview subsequent treating doctors has generated considerable controversy in the medical malpractice bar. The position of the plaintiffs' bar has been articulately set forth, not only in the papers on this application, but also in two articles, Moore and Gaier, Medical Malpractice: Interviews with Treating Physicians, N.Y.L.J., July 6, 2004 at 3, col.1 and Bloom and Steigman, A HIPAA Primer, Bill of Particulars, New York State Trial Lawyers Association, Winter 2005, p 20. Essentially plaintiffs' counsel never thought that it was fair to permit defense counsel to have unfettered ex parte communications with plaintiffs' subsequent treating physicians, purportedly giving them an undue advantage in trial preparation, and urge that the enactment of HIPAA and the promulgation of regulations under HIPAA now bar the practice. On the other hand defense counsel urge with equal passion that it is essential for them to continue having access to a plaintiff's subsequent treaters so that they can adequately prepare for trial and that HIPAA and the regulations have not altered the practice. Several of my distinguished colleagues have written on this issue, each striving to achieve a balance that is fair to both sides. Regrettably, thus far appeals have evidently not been taken from the orders entered so that we do not have the appellate guidance that would definitively resolve these issues. The basic pre-HIPAA and post-HIPAA law has been set forth in detail in the several decisions of my learned colleagues, so that it is not necessary to review that law in detail. However, a brief overview is required before proceeding further.
The Legal Background Pre-HIPAA Anker v Brodnitz, 98 Misc2d 148, aff'd 73 AD2d 589, lv.denied 51 NY2d 703 (1980), which barred ex parte interviews by defense counsel, has been interpreted as limited to the pre-note of issue period by the subsequent decisions of Zimmerman v Jamaica Hosp., Inc., 143 AD2d 86 (2nd Dep't, 1988), lv. denied 73 NY2d (1988); Fraylich v Maimonides Hosp., 251 AD2d 251 (1st Dep't, 1998); Tiborsky v. Martorella, 188 AD2d 795 (3rd Dep't, 1992); Levande v Dines, 153 AD2d 671 (2d Dep't, 1989); Luce Guardian for Luce v State, 266 AD2d 877 (4th Dept., 1999). Since Zimmerman, decided 17 years ago, post-note of issue ex parte interviews of subsequent treaters has been permitted, evidently either without the parade of horrors now feared by plaintiffs' counsel, or with the "problems" being so rare that they have never been brought to my attention.
HIPAA
HIPAA, enacted by Congress in 1996, contained a provision to create a "federal floor" of privacy for Protected Health Information (PHI). US Department of Health and Human Services "Fact Sheet", April 13, 2003 (Cohen moving affirm
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