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Steele v. Clifton Springs Hospital and Clinic1/21/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In this medical malpractice action, defendants move for an order compelling plaintiff to execute and provide to them HIPAA compliant medical authorizations permitting defense counsel to meet with plaintiff's subsequent treating physicians. In the alternative, defendants seek to preclude plaintiff from calling as witnesses at trial any treating physician for which plaintiff has failed to provide defense counsel a medical authorization. Defense counsel requested the medical authorizations from plaintiff in order that they may contact plaintiff's subsequent treating doctors in order to interview them to ascertain if their testimony at trial will be necessary. Plaintiff's attorney has refused to provide signed medical authorizations to defendants' attorneys arguing that these types of ex parte discussions with plaintiff's treating physicians is prohibited by recent case law and constitutes post note of issue discovery.
It has long been the rule in New York that defense counsel may interview a plaintiffs' nonparty subsequent treating doctors after the discovery phase of litigation is completed (see Zimmerman v Jamaica Hosp., Inc., 143 AD2d 86 [2nd Dept 1988]; Levande v Dines, 153 AD2d 671 [2nd Dept 1989]; Tiborsky v Martorella, 188 AD2d 795 [3rd Dept 1992]; Luce ex rel. Luce v State, 266 AD2d 877 [4th Dept 1999]). Plaintiff now argues that the federal Health Insurance Portability and Accountability Act (HIPAA) and two recent trial level decisions have curtailed this practice.
The first decision relied upon by plaintiff in refusing to provide HIPAA compliant medical authorizations is Browne ex rel. Estate of Browne v Horbar, 2004 WL 2827657 [Sup Ct NY Co 11/17/04]). In Browne, which also was a medical malpractice action, defense counsel sought a qualified protective order granting permission for a nonparty subsequent treating doctor to speak to defense counsel upon service of a non-judicial subpoena. Justice Bransten denied the request holding that "nothing requires the Court to authorize what amounts to ex parte, post-note-of-issue discovery" (Id. at 2). Apparently, and despite acknowledging that the First and Second Departments had condoned the practice of allowing defense attorneys to interview a plaintiff's subsequent treating physician after the note of issue had been filed in Levande v. Dines, 153 AD2d 671 (2d Dept 1989), and Fraylich v. Maimonides Hosp., 251 AD2d 251 (1st Dep't 1998), Justice Bransten essentially ignored those holdings, stating "neither Appellate Division decision analyzes why the 'sanctity of the physician-patient privilege' and the interest in insulating treating physicians from 'improper pressures' are stronger before the note of issue is filed, but diminish once discovery is complete" (Browne v Horbar at 4). In its stead she requires defense counsel to employ "traditional discovery devises", i.e. non-party depositions, if they wish to get any information from one of plaintiff's prior or subsequent treating physicians.
For the following reasons, this court declines to follow the holding of Browne v Horbar . First, to do so would abrogate the rule established by the Appellate Divisions in Zimmerman v Jamaica Hosp., Inc., 143 AD2d 86 [2nd Dept 1988]; Levande v Dines, 153 AD2d 671 [2nd Dept 1989]; Tiborsky v Martorella, 188 AD2d 795 [3rd Dept 1992]; Luce ex rel. Luce v State, 266 AD2d 877 [4th Dept 1999]) and Fraylich v. Maimonides Hosp., 251 AD2d 251 (1st Dep't 1998). This court is obligated to follow the holdings of the Appellate Division until the Co
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