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Federal privacy provisions that went into effect in 2003 do not bar defense lawyers from informally interviewing doctors who have treated medical malpractice plaintiffs after discovery has ended, a Manhattan Supreme Court justice has ruled. Prior to the effective date of the privacy provisions in the federal Health Insurance Portability and Accountability Act, New York law was clear that defense lawyers could conduct ex parte interviews with doctors who had treated a medical malpractice plaintiff. As the fourth judge to address the issue in Manhattan, Justice Stanley Sklar’s ruling in Smith v. Rafalin tied the tally at two in favor of allowing the interviews and two not in favor. Five judges in four other counties have also ruled that the practice may continue. Three of those five judges would have required defense lawyers to turn over to plaintiffs any notes or tapes made during the interviews. But Sklar disagreed with them, concluding that those material were protected from disclosure as attorney work product. In Manhattan, both Justices Sklar and Sheila Abdus-Salaam have ruled that defense lawyers should be able to talk privately after the close of discovery with any of the plaintiff’s doctors who agree to be interviewed. Justice Eileen Branston, who also sits in Manhattan, has rejected a request for a post-discovery interview in Browne v. Horbar. And Justice Alice Schlesinger has issued a policy expressing a preference that permission to speak to a plaintiff’s doctor be sought during “formal discovery.” Schlesinger’s policy leaves open the possibility that she might permit the interview upon an appropriate showing by the defense. The principal point of contention between the approaches of Sklar and Bransten is the way discovery should proceed. Sklar wrote that he routinely denies depositions of doctor witnesses in malpractice cases unless the doctor’s medical records are inadequate in some fashion. Moreover, he noted, a deposition can impose a significant burden on a doctor’s time while an interview can be conducted over the phone or at the doctor’s office. Unlike discovery, which is compulsory, the interviews are voluntary. Sklar noted that when he inquired of the two lawyers arguing the motion before him, they both estimated that less than 50 percent of doctors would agree to be interviewed by lawyers for their client’s adversary. Most significantly, Sklar observed, plaintiffs obviously have access to their own doctors. To deny the defense a chance to gain similar access would be “one-sided” and “manifestly unfair.” Bransten, in contrast, took the view that the time for the defense to talk to plaintiff’s treating physicians, other than the defendant in the malpractice case, is during discovery when both sides are present and other safeguards are in place. “Private interviews outside the patient or the patient representative’s presence present very troubling confidentiality problems,” Bransten wrote in Browne v. Horbar. She refused to issue an order requiring an interview without the plaintiff’s consent. In contrast, Sklar ruled that the plaintiff must issue the authorization required for the release of medical information under the federal law. By bringing a malpractice lawsuit, he reasoned, the plaintiff had waived the physician-patient privilege, including the right to refuse the authorization required by the federal statute. The Heath Insurance Portability and Accountability Act was enacted in 1996, but its privacy provisions were not implemented until 2003. In a memorandum issued to the bar, Schlesinger “urged” malpractice lawyers to seek information from physicians during formal discovery because of the privacy issues raised by the act. To obtain a post-discovery interview, Schlesinger wrote that the defense must show that it will yield “material and necessary” information and also demonstrate why the information was not sought during regular discovery. Schlesinger said she would determine “whether and in what manner” the interview should be conducted. INTERVIEW NOTES Outside of Manhattan, the judges agreeing with Sklar that HIPAA permits the interviews are Justice Thomas P. Aliotta and Acting Justice Joseph J. Maltese, both on Staten Island; Justice Gerard H. Rosenberg in Brooklyn; Justice James P. Dollard in Queens; and Justice Robert H. Lunn in Monroe County. Sklar, however, took issue with the conclusion of Maltese, Dollard and Rosenberg that any materials compiled by defense counsel during the interview must be turned over to plaintiffs. Such material would include notes taken during the interview as well as any audio- or video-tape made of the session. Sklar noted that the Appellate Division, 1st Department, had ruled in 1998 that materials prepared by defense attorneys reflecting what doctors had said during the interviews were protected by the work-product privilege (Fraylich v. Maimonides Hospital, 251 AD2d 251). Just as a fair play requires the defense to be given access to the plaintiff’s doctors, it also requires that defense lawyers be permitted to hold onto any information they gain until trial, Sklar reasoned. When a plaintiffs lawyer interviews his client’s doctors, Sklar pointed out, there is “no reciprocal obligation” that they share any materials with the defense which would disclose the substance of the discussions. Joshua R. Cohen of Garson Gerspach DeCorato & Cohen brought the motion to compel the authorization required under HIPAA for the defendants, Dr. Yefin Vaynshelbaum and Park Avenue Medical Imaging and Mammography. Elizabeth Montesano of Sullivan Papain Block McGrath & Cannavo represented the plaintiff, Suzanne E. Smith.

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