| Poser v Varnovitsky |
| 2007 NY Slip Op 10446 [46 AD3d 1295] |
| December 27, 2007 |
| Appellate Division, Third Department |
| Gregory Poser, an Infant, by His Mother and Guardian, ChristineO'Brien, et al., Appellants, v Tamara Varnovitsky, Respondent. |
—[*1] Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains (Richard J. Nealon ofcounsel), for respondent.
Spain, J. Appeal from an order of the Supreme Court (Egan, Jr., J.), entered April 20, 2007 inUlster County, which granted defendant's motion to compel certain disclosure by plaintiffs.
Plaintiffs, a mother and her son, commenced this medical malpractice action against thelatter's pediatrician, who allegedly failed to diagnose a corneal tear in his eye. After formaldiscovery was concluded and a note of issue filed, defendant successfully moved for an ordercompelling plaintiff Christine O'Brien to execute medical authorizations that comply with theHealth Insurance Portability and Accountability Act of 1996 (see 42 USC § 1320det seq. [hereinafter HIPAA]) to permit defendant's post-note of issue ex parte interviewswith plaintiffs' nonparty treating physicians. Plaintiffs appeal from that order, and we affirm.
The dispositive issue on appeal—whether a court may order a plaintiff who has put hisor her medical condition in controversy to execute valid HIPAA releases so as to permit his orher physician to submit to a post-note of issue interview with the adverse party—is a purequestion of law that has recently been resolved by the Court of Appeals (see Arons vJutkowitz, 9 NY3d 393, 401-402 [2007]). There, the Court found that it was "entirelyproper"—in a case where, as here, plaintiffs refused to sign HIPAAauthorizations—for the trial court, on a motion by the defendants, to issue orderscompelling plaintiffs to do so (id. at 415-416). Specifically, the Court held: "[T]hePrivacy Rule does not prevent this informal discovery from going forward, it merelysuperimposes procedural prerequisites. As a practical matter, this means that the attorney whowishes to contact an adverse party's treating physician must first obtain a valid HIPAAauthorization or a court or administrative order; or must issue a subpoena, discovery request orother lawful process with satisfactory assurances relating to either notification or a qualifiedprotective order" (id. at 415). Notably, the Court, in approving of this informal practice ofinterviewing the infant plaintiff's treating physician on the eve of trial, emphasized that theHIPAA authorization does not require the nonparty physician to submit to the interview, butmerely reflects that the plaintiff waived his or her physician-patient privilege by bringing thelawsuit (id. at 409, 415).
In light of this controlling, dispositive precedent, we can discern no error in Supreme Court'sdecision to direct O'Brien to execute the HIPAA authorizations.
Mercure, J.P., Peters, Carpinello and Mugglin, JJ., concur. Ordered that the order is affirmed,without costs.