HIPAA prohibited ordered disclosure of medical records.

CASE ON POINT: Arons v. Jutkowitz, No. 2005-06762 (N.Y. App.Div. 12/05/2006)-NY

ISSUE: Until recently, it was not unusual for medical malpractice insurance defense counsel to make ex-parte contact with health care providers who had provided care and treatment to alleged victims of malpractice who had sued hospitals, physicians, and other health care providers for medical malpractice. This included wrongful death claims. However, there is a relatively new standard to which hospitals, physicians, and their attorneys, as well as the courts, must adhere. It is commonly known as HIPAA.

CASE FACTS: Manuel Arons and others brought suit against Drs. Robert Jutkowitz, William Gael, and Staten Island University Hospital for medical malpractice and wrongful death. During the course of discovery, the defendants obtained an order from the Supreme Court of New York compelling the plaintiffs to execute authorizations enabling the defendants to obtain copies of medical records from the non-party physicians involved in the care and treatment rendered in the plaintiffs' suit and prohibited the plaintiffs from offering evidence at trial relating to the alleged spoliation of evidence by one of the defendants. The order would have permitted defense counsel to speak with certain physicians who rendered care to the plaintiffs' decedent related to claims made in the suit, and denied the plaintiffs' cross motion to strike the answer of the defendant Robert Fulop or, in the alternative, to preclude him from offering evidence at trial due to the alleged spoliation of evidence and so much of it that involved the other parties. The plaintiffs appealed the order of the Supreme Court of New York ordering them to sign authorizations forcing them to allow the defendants to contact and obtain statements concerning the medical care and treatment rendered by the defendants. The defendants cross appealed regarding the court's same orders, which directed them to provide the plaintiffs with any and all written statements, materials, notations, and documents obtained from the interviewed health care providers, as well as copies of any memoranda, notes, audio recordings, or video recordings of any oral statements made by the interviewed health care providers. The order precluded the defendants from admitting certain information into evidence in the case because the defendant had been guilty of spoliation of evidence. The spoliation of evidence by one defendant impacted all of the defendants.

COURT'S OPINION: The Supreme Court of New York, Appellate Division, held that the lower court exercised its discretion in denying the plaintiffs' cross motion to strike the answer of one defendant due to his alleged spoliation of evidence. The court noted that as the plaintiffs in effect conceded, the loss of the decedent's medical records had not deprived the plaintiffs of the means of establishing a prima facie case against the defendant in question since they were able to reconstruct the decedent's chart. Accordingly, the court held that the plaintiffs failed to sustain their burden of demonstrating that they would be severely prejudiced by reason of the missing evidence. However, the court held that the lower court erred in ordering the plaintiff's to execute authorizations permitting the defense to speak with physicians who rendered care to the plaintiffs' decedent relating to claims being made in the suit.

LEGAL COMMENTARY: At one time in New York, as in many other states, members of the medical malpractice defense bar were not precluded from making ex-parte contact with physicians who had treated victims of medical malpractice. This included cases in which there were allegations that wrongful death resulted. However, a new days has dawned! Since the Federal Health Insurance Portability and Accountability Act of 1996 (42 USC Section 1320d et seq.; hereinafter HIPAA) has put a premium on the confidentiality of health care medical records, extraordinary changes have been made in order to implement the confidentiality of patients' health care records. The court recognized that this was a case of first impression for it. Many lower courts in New York had been confronted with the issue, and consequently, decisions have not been uniform. In some cases decided by lower courts, records have been afforded the confidentiality and protection from nondisclosure to which they were entitled. Conversely, an equal number of courts have failed to implement the protections to which medical records are entitled under HIPAA. Hopefully, this case will help courts in other jurisdictions to determine the extent to which HIPAA protects medical records. Gone is the day when the fact that a plaintiff brought suit for medical malpractice, ipso facto, was carte blanche authority that the patients' records were to be disclosed.