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November 28, 2007

HIPAA goes dark in New York

Well, Broadway is still dark this week, and it seems the judges of the New York Court of Appeals don't want the courts of the Empire State to do much work either -- at least not the sort of work that entails thinking hard about whether litigants who put their medical status in issue need to consent -- under HIPAA -- to informal interviews of their treating physicians by opposing counsel, conducted under New York discovery rules.

A tip of the hat to Eric Turkewitz, who wrote yesterday in his NY Personal Injury Law Blog:

The decision in Arons v. Jutkowitz is expected to open a small floodgate of attempts by insurance companies and defense lawyers to privately approach treating physicians without the knowledge or permission of the patients and take statements without their counsel or any court reporter being present.

The conservative Justice Read, writing for the majority, concluded that plaintiffs can be forced to sign HIPAA compliant authorizations to allow the interviews. Because this will be done outside the formal deposition process, however, the usual safeguards regarding relevance and accuracy are no longer in place.

-- David Harlow


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