Photo of Bexis

We love it when courts agree with us. (And don’t say, “Because it happens so rarely.”)
We posted in February that HIPAA does not preempt state laws that allow defense counsel to speak informally (and without plaintiff’s counsel present) with treating physicians.
In August, we praised a Kentucky federal trial court for holding that defense counsel do have the right to conduct those informal interviews of treaters.
Kentucky’s good, but New York’s better!
(Please, please. We’re not insulting Kentucky here. It’s just that there are more people, and more drug companies, in New York than in Kentucky. The more you blog, the more you realize that people take offense at the smallest perceived slights.)
Anyway, today’s happy news is Arons v. Jutkowitz, __ N.E.2d __, 2007 WL 4163865 (N.Y. Nov. 27, 2007). In three cases, which were consolidated on appeal, plaintiffs named multiple health care providers as defendants in medical malpractice cases. Not surprisingly, in each case, counsel for certain defendants wanted to interview the treating physician who was really at the heart of the claim. Those defendants asked the plaintiffs to execute HIPAA-compliant authorizations that would permit the interviews. Plaintiffs refused. Defendants moved to compel execution of the authorizations. The trial courts granted the motions to compel, although all three imposed limitations on how counsel could conduct the interviews and what information obtained during the interview would have to be shared with plaintiff.
(How nice that the procedural history of all three of the consolidated cases followed the same path. Otherwise, just describing this decision would have been a bear.)
The Appellate Division reversed in the lead case of Arons, holding that defendants were “entitled only to disclosure via the discovery devices enumerated” in the state court rules, “which do not mention ex parte interviews.” Id. at 2.
Happily, the New York Courts of Appeals (which is the highest court in New York) in turn reversed the Appellate Division. The Court of Appeals had, in an earlier case, allowed opposing counsel to interview corporate employees — other than presumably high-ranking employees whose acts would bind, or be imputed to, the corporation as a whole — who had witnessed a workplace accident. The court had reasoned that barring informal interviews would increase the cost of fact-gathering (because informal interviews cost less than formal depositions) and hamstring efforts to learn information.
In a different case, the court had permitted opposing counsel to conduct an ex parte interview of even “a former corporate executive who had been an important participant in the events contested in the litigation as well as a member of [the plaintiff’s] ‘litigation team.'” Id. at 4. Opposing counsel had, in that case, appropriately cautioned the executive not to reveal privileged or confidential information, including, in particular, the plaintiff’s litigation strategy.
In Arons, the Court of Appeals extended those precedents to allow ex parte interviews of treating physicians: “We see no reason why a nonparty treating physician should be less available for an off-the-record interview than the corporate employees in Niesig or the former corporate executive in Siebert.” Id.
First, a medical malpractice plaintiff waives the physician-patient privilege by bringing a personal injury case that places his or her medical condition in issue. Second, although the discovery rules do not expressly authorize ex parte interviews, the rules don’t expressly forbid them, and lawyers have always conducted informal interviews of witnesses to investigate the facts of lawsuits. Third, informal interviews take less time than formal depositions, sparing the litigants expense and the physicians the distraction of attending lengthy depositions. Finally, the court assumed that the lawyers conducting the interviews would be honest: They would tell the physician what parties the lawyers represented and make clear that the interview was “voluntary and limited in scope to the particular medical condition at issue in the litigation.” Id. at 5.
But that’s not all.
The Court of Appeals analyzed HIPAA and its preemption provisions at length and rejected the plaintiffs’ preemption arguments. The court concluded that “there can be no conflict between New York law and HIPAA on the subject of ex parte interviews of treating physicians because HIPAA does not address this subject.” Id. at 8. HIPAA simply requires that a lawyer who wants to interview an adverse party’s treating physician must obtain a HIPAA-compliant authorization and issue a subpoena (or other appropriate discovery request) that provides any necessary notice to interested parties.
But that’s not all.
The trial courts in the appeals consolidated in Arons had imposed conditions on the ex parte interviews, requiring defense counsel to provide his adversary with certain materials obtained during the interview. The Court of Appeals saw nothing in its precedents or HIPAA that required these conditions and held that the conditions had been imposed improperly.
For defense counsel in drug or device product liability cases, this is all good news. Follow the appropriate procedures, make the appropriate disclosures, and you’ll have a chance (if the treater consents) to interview treating physicians outside the presence of plaintiff’s counsel.
A level playing field, at last.
(For a contrary — that is, plaintiff’s — take, click here.)