Arons v. Jutkowitz

Phyllis Arons (plaintiff) brought a medical-malpractice suit against Robert Jutkowitz and others (collectively, Jutkowitz) (defendants). Tanya Webb (plaintiff) brought a separate medical-malpractice suit against New York Methodist Hospital and others (collectively, hospital) (defendants). David Graham (plaintiff) brought a separate medical-malpractice suit against Annette Kish and others (collectively, Kish) (defendants). After the note of issue was filed in each case (i.e., confirmation that discovery was complete and the cases were ready for trial), Jutkowitz, Kish, and the hospital (collectively, doctors) each asked the supreme court to order Arons, Webb, and Graham (collectively, patients) to waive their confidentiality rights under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) so that the doctors’ counsel could informally interview the patients’ treating physicians outside the presence of the patients or the patients’ lawyers. The supreme courts granted the doctors’ motions in all three cases. However, in two cases, the supreme courts ordered the doctors to promptly provide the patients with written statements or notes from the interviews. The appellate-division courts reversed in all three cases. Per the appellate-division courts, the patients waived their doctor-patient privileges by suing for malpractice, but the doctors were permitted to obtain discovery solely pursuant to Article 31 of the Civil Practice Law and Rules (CPLR) and Part 202 of the Uniform Rules for New York State Trial Courts (Uniform Rules), neither of which provided for informal interviews of treating physicians. The doctors appealed, arguing that their proposed interviews were analogous to informal interviews of a corporate defendant’s employees, which the Court of Appeals approved in Nieseg v. Team 1. The patients responded that neither the CPLR nor the Uniform Rules identified informal interviews as a disclosure tool and that there was a danger that the doctors might inadvertently divulge still-privileged medical information in an informal setting without the patients’ lawyers present.