Tuesday, November 27, 2007
The New York Court of Appeals held today that "an attorney may interview an adverse party's treating physician privately when the adverse party has affirmatively placed his or her medical condition in controversy." The court further holds that HIPAA (the Health Insurance Portability and Accountability Act) "imposes procedural prerequisites unique to the informal discovery of health care professionals." The HIPAA aspect of the decision holds that a trial court may properly require the patient to consent to a waiver of the Act's protections as the lawsuit waives the physician-patient privilege. The decision involves three seperate cases with the common discovery issue.
The dissent states: "Our holding today grants defense counsel the unprecedented ability to compel a plaintiff...to execute authorizations allowing defense counsel to speak to his or her treating physicians outside the formal discovery process and without the plaintiff being present." (Mike Frisch)