In Arons v. Jutkowitz, et al , 9 N.Y.3d 393, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007), New York's Court of Appeals held that plaintiff could be compelled to authorize defense counsel to conduct ex parte , off-the-record interviews with non-party treating physicians, as long as a HIPAA-compliant authorization was utilized.
As helpful as that decision was in clarifying what the necessary prerequisites were to conducting such interviews, it left some questions open. One of them has just been addressed by the Appellate Division, Second Department, in a case that was decided June 9, 2009, Porcelli v. Northern Westchester Hospital Center , NY Slip Op 04881 (2d Dept. 2009).
What language can be included on the face of the HIPAA-compliant authorization, and can it serve to alert the doctor that his or her participation is voluntary, and is sought solely to assist defense counsel at trial ?
According to Porcelli , a plaintiff may now place, directly on the face of the authorization, a highlighted statement that the purpose of such an informal, ex parte interview sought by defense counsel is solely to assist defense counsel at trial, and that the doctor's particiapation is voluntary. The voluntariness has not been an issue since the Arons decision, which specifically noted that “the treating physicians remain entirely free to decide whether or not to cooperate with defense counsel. HIPAA-compliant authorizations and HIPAA court orders cannot force a health care professional to communicate with anyone…” Arons v. Jutkowitz , 9 N.Y.2d 416.
But whether plaintiffs could alert subsequent treating physicians regarding the voluntariness, and advise them that the purpose behind such interviews was to help defendants, whose interests are naturally adverse to those of plaintiffs, are relatively unsettled areas. In arriving at its decision in Porcelli , the Second Department looked back to Arons , which suggested that it was crucial that the physician be advised of such information up front, so that “an individual who agrees to be interviewed will not unwittingly disclose priviliged information regarding a medical condition not at issue in the litigation.”
This is a well-considered and thoughtful decision that respects the importance of informal discovery, but does so in a manner that forces that discovery, to the extent possible, to stay within areas relevant to the case.