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A09030 Summary:

BILL NOA09030
 
SAME ASSAME AS S00243
 
SPONSORDinowitz
 
COSPNSRWeprin, Mosley, Harris
 
MLTSPNSR
 
Amd 3102, CPLR
 
Enacts the "patient privacy protection act"; prohibits ex parte interviews of other party's treating physicians or health care providers in personal injury, medical, dental, or podiatric malpractice, or wrongful death actions.
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A09030 Actions:

BILL NOA09030
 
01/12/2018referred to judiciary
02/13/2018reported referred to codes
02/27/2018reported
03/01/2018advanced to third reading cal.702
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A09030 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9030
 
SPONSOR: Dinowitz
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to enacting the "patient privacy protection act"   PURPOSE OF BILL: To prohibit in a personal injury, medical, dental or podiatric malprac- tice or wrongful death action the defendant from conducting ex parte interviews with the plaintiffs non-party treating physicians.   SUMMARY OF PROVISIONS: This bill prohibits, in any action involving personal injury, medical, dental or podiatric malpractice, or wrongful death, a party from conducting ex parte interviews with an adverse party's treating physi- cians. This bill also clarifies that an attorney or the agent or employ- ee of an attorney who represents the patient, the estate of the patient, or the natural or duly appointed guardian of the patient whose condition is at issue in the action may conduct ex parte conversations with a treating physician or other health care provider of the patient.   JUSTIFICATION: This legislation has become necessary because of the interplay between the Federal Health Insurance Portability and Accountability Act of 1996 (42 use Section 1320(d) et seq.) commonly referred to as HIPAA and the defense bar's practice of privately interviewing plaintiffs' non-party treating physicians, sometimes even after a note of issue has been filed. Frequently in actions involving personal injury, medical malpractice and wrongful death defense counsel have requested that plaintiff execute authorizations which would, pursuant to HIPAA, have permitted them after the filing of the note of issue to informally and privately interview non-party treating physicians who rendered care to the plaintiff or decedent, as the case may be, related to the action. Plaintiffs who believe that such interviews are either unwarranted or not authorized by law have often declined to execute such authorizations and this has created a great deal of legal and judicial comment about the efficacy of these post-note of issue requests for discovery. It has never been in much question that a plaintiff in a personal injury or medical malpractice action waives the physician-patient privilege with respect to those physical or mental conditions which he or she has placed in issue in the lawsuit. Defendants in such actions have a right to disclosure regarding the relevant medical conditions in issue and they may utilize any of the disclosure devices set forth in CPLR Article 31 to obtain such disclosure. However, CPLR Article 31 does not include a provision authorizing defense counsel on behalf of his or her client to meet privately with plaintiffs treating physician. Further, because of the availability of disclosure under CPLR Article 31, such private interviews had been prohibited during discovery, prior to the filing of a note of issue. Since the adoption of HIPAA in 1996, issues concerning patient privacy have been of increasing concern and defense counsel attempting to speak privately with plaintiffs' non-party treating physicians have had to comply with the requirements of HIPAA. Physicians require either written authorizations signed by the plaintiff which comply with HIPAA and which permit oral communication or a court order authorizing such oral commu- nications which likewise complies with HIPAA. When plaintiffs refuse after the filing of a note of issue to execute such authorizations, defendants have moved to compel plaintiffs' execution of such authori- zations. This has resulted in the Court of Appeals' holding in Arons v. Jutkowitz, 9 NY 3d 393 (2007), where the Court held that an attorney may interview an adverse party's treating physician privately. This holding permits defense counsel to use HIPAA-compliant authorizations to inter- view treating physicians at anytime, both prior to and after the filing of the Note of Issue and Certificate of Readiness. This creates an inconsistency within CPLR Article 31, and creates the possibility of significant post-note of issue discovery, which is expressly prohibited by the Uniform Rules for New York State Trial Courts unless the party seeking the discovery can demonstrate that "unusual or unanticipated circumstances" have developed subsequent to the filing of the Note of Issue and Certificate of Readiness which requires additional pretrial proceedings to prevent substantial prejudice. 22 NYCRR 202.21(d). This legislation would make it clear that in any action involving personal injury, medical, dental or podiatric malpractice, or wrongful death the defendant is barred from conducting ex parte interviews with a party's treating physicians.   LEGISLATIVE HISTORY: 2016: A.242/S.287 - A. Codes/S.Judi 2015: A.242/S.287 - A. Rules/S.Judi 2014: A.2365/S.1046 - A. Cal/S.Judi 2013: A.2365/S.1046 - A. Codes/S.Judi 2012: A.694-A Lancman/S.3296 - A. Cal/S.Rules 2011: A.694-A Lancman/S.3296 - PA/S. Cal. 2010: A.1254-A Lancman/S.3203-A - A. Cal/S.Rules. 2009: A.1254 Lancman/S.3203-A - PA/S.Codes. 2008: A.8691-B Lancman/S.5256-B - PA/S.Codes 2007: A.8691-A Lancman/S.5256-A - PA/S.Rules   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: Shall take effect on the thirtieth day after it shall become law and shall apply to all actions involving personal injury, medical, dental or podiatric malpractice, or wrongful death filed on and after such date and to all such actions pending on such effective date except as to conduct prohibited by section one of this act with occurred prior to such effective date.
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A09030 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9030
 
                   IN ASSEMBLY
 
                                    January 12, 2018
                                       ___________
 
        Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
          tee on Judiciary
 
        AN  ACT to amend the civil practice law and rules, in relation to enact-
          ing the "patient privacy protection act"
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Short title.  This act shall be known and may be cited as
     2  the "patient privacy protection act".
     3    § 2.  Section 3102 of the civil practice law and rules is  amended  by
     4  adding a new subdivision (c-1) to read as follows:
     5    (c-1)  Ex-parte  interviews.  In any action involving personal injury,
     6  medical, dental or podiatric malpractice, or wrongful death, no party or
     7  anyone acting on behalf of a party may  either  directly  or  indirectly
     8  conduct ex-parte interviews with the treating physicians or other health
     9  care  providers  of  any other party.  Nothing in this subdivision shall
    10  prohibit an attorney or the agent or employee of an attorney who repres-
    11  ents the patient, the estate of the patient,  or  the  natural  or  duly
    12  appointed  guardian  of  the  patient whose condition is at issue in the
    13  action from conducting ex-parte conversations with a treating  physician
    14  or other health care provider of the patient.
    15    §  3.  This  act shall take effect on the thirtieth day after it shall
    16  have become a law and shall apply  to  all  actions  involving  personal
    17  injury,  medical,  dental  or  podiatric  malpractice, or wrongful death
    18  filed on and after such date and to all such  actions  pending  on  such
    19  effective  date  except  as to conduct prohibited by section two of this
    20  act which occurred prior to such effective date.
 
 
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02829-01-7
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