Burden of Proof: HIPAA Interviews Revisited, and Whose Body Is It?
By David Paul Horowitz and Katryna L. Kristoferson
In 2023 it is hard to understand why the medical profession, always based (at least, in modern times) on science and increasingly utilizing technology (sometimes in frightening ways), is one of the only professions that continue to rely on fax machines for sending and receiving patient information.
The stated reason: privacy requirements under Health and Insurance Portability and Accountability Act (HIPAA). A recent Second Department case revisits the Court of Appeals’ decision in Arons v. Jutkowitz1 in the context of a defendant’s right, in civil litigation, to interview physicians not about medical treatment but about the circumstances under which a personal injury plaintiff was injured, leading to the need for medical treatment.
At the same time, in an era where patients’ rights to make medical choices and control their own bodies (at least in New York) are sacred, two recent cases touch on patients’ privacy rights with respect to their own bodies. In the first, the issue was whether a patient’s right to determine medical treatment by electing to proceed with surgery before a defendant conducts a physical examination under CPLR 3121 can constitute spoliation. In the second, the extent to which a defendant’s right to con- duct a physical examination includes what is patently an invasive physical examination of the plaintiff.
Scope of Physician Interviews Utilizing HIPAA Authorizations
In the Arons decision the Court of Appeals held:
We see no reason why a non-party treating physician should be less available for an off-the-record interview than the corporate employees in Niesig or the former corporate executive in Siebert. As an initial matter, a litigant is “deemed to have waived the [physician-patient] privilege when, in bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue” []. This waiver is called for as a matter of basic fairness: “[A] party should not be permitted to affirmatively assert a medical condition in seeking damages or in defending against liability while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to disputing the party’s claim.”
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Plaintiffs waived the physician-patient privilege as to this information when they brought suit, so there was no basis for their refusal to furnish the requested HIPAA compliant authorizations.[] The waiver does not depend on the form or medium in which relevant medical information is kept or may be found: information does not fall outside the waiver merely because it is captured in the treating physician’s memory rather than on paper (see generally 65 Fed Reg 82462, 82620 [explaining rationale for treating verbal communications the same as paper and electronically based information]). Of course, it bears repeating that the treating physicians remain entirely free to decide whether or not to cooperate with defense counsel. HIPAA compliant authorizations and HIPAA court orders cannot force a health care professional to communicate with anyone; they merely signal compliance with HIPAA and the Privacy Rule as is required before any use or disclosure of protected health information may take place.
Arons balanced two competing interests: the patient’s right to speak freely with his or her medical provider under the protection of the physician/patient privilege against a civil litigation defendant’s desire to interview a plaintiff ’s treating physician.
The rationale of Arons was based upon an earlier decision by the Court in Muriel Siebert & Co., Inc. v. Intuit Inc.,2 building on the seminal case Niesig v. Team I.3
In Yan v. Kalikow Mgt., Inc.,4 the Second Department addressed and determined an issue of first impression, whether defendants
were entitled to an authorization to conduct an informal, ex parte interview of a physician assistant who treated the plaintiff. This case apparently presents a matter of first impression, as the defendants seek to interview the physician assistant about a statement the plaintiff made regarding the cause of her accident, rather than about the diagnosis or treatment of the injury that allegedly resulted from the accident. We hold that the Supreme Court properly denied that branch of the defendants’ motion which was for an Arons authorization, because compelling the plaintiff to provide such an authorization would constitute an unwarranted extension of the Court of Appeals’ holding in Arons v. Jutkowitz.
The medical records recorded:
After the accident, the plaintiff was taken to the emergency department at New York-Presbyterian Hospital, where she was treated by physician assistant Alejandro F. Molina. The medical record prepared by Molina indicates that the plaintiff reported that “she was attempting to enter her automobile on the passenger’s side when she tripped over a tree branch falling onto [her] outstretched right arm.”
It is worth noting that statements made by a patient that are germane to medical treatment are considered exceptions to the hearsay rule and therefore admissible for their truth.5
Can a Plaintiff Be Penalized for Spoliation of a Body Part?
We can all agree that a competent patient, in consultation with his or her physician, has the right to make decisions concerning both the type of medical treatment and the timing of that treatment. CPLR 3121 codifies a defendant’s right to conduct certain physical and mental examinations of a personal injury plaintiff to obtain independent analysis of the existence, origin and scope of that plaintiff ’s injuries:
After commencement of an action in which the mental or physical condition or the blood relation- ship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control. The notice may require duly executed and acknowledged writ- ten authorizations permitting all parties to obtain, and make copies of, the records of specified hospitals relating to such mental or physical condition or blood relationship; where a party obtains a copy of a hospital record as a result of the authorization of another party, he shall deliver a duplicate of the copy to such party. A copy of the notice shall be served on the person to be examined. It shall specify the time, which shall be not less than twenty days after service of the notice, and the conditions and scope of the examination. CPLR 3121(a).
The timing of the defendant’s physical examination is often fluid. Most defense counsel routinely serve a CPLR 3121 demand with the answer, without a specified date, and preliminary and compliance conference orders routinely provide a provision for that examination, usually with reference to the examination following one or more precedent events such as a deposition.
The Second Department, in Fadeau v. Corona Indus. Corp.,6 contended with the issue of whether a plaintiff undergoing surgery, after the commencement of an action but prior to defendants obtaining an IME of plaintiff, constitutes spoliation. Opting to agree with case law in the First Department,7 the Fadeau court held:
Plaintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forgo surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury.
Thus, plaintiff ’s pre-IME spine surgery did not result in the spoliation of evidence. Defendant’s categorization of the plaintiff ’s surgery as “non-emergency” does not alter this conclusion.
In addition, defendant was not “prejudiced” by plaintiff ’s medical treatment, as there is other evidence upon which defendant may rely, including plaintiff’s pre-surgical and post-surgical medical records.
Invasive Physical Examinations
It is hard to imagine a physical examination more delicate than a comprehensive gynecological examination inclusive of a pelvic examination. Yet that was precisely the type of physical examination demanded by the defendant in Pettinato v. EQR-Rivertower, LLC.8
The First Department framed the issue this way:
A plaintiff in a personal injury action affirmatively places her physical and/or mental condition in controversy [ ]. Pursuant to CPLR 3121, following the commencement of an action, “[w]here a plaintiff puts her physical condition at issue, the defendants may require [a plaintiff to] submit to an IME by a physician retained by defendant for that purpose” [ ]. Thus, this is not a case about whether an IME, specifically a gynecological examination, should have been permitted.
Instead, this is a case about the scope of such a physical examination. In determining what kind of examination to authorize, the court must balance the desire for the plaintiff to be examined safely and free from pain against the need for the defendant to determine facts in the interest of truth [ ]. Thus, a showing of the medical importance and safety of the particular procedure is required, as well as an explanation of the relevance and the need for the information that a procedure will yield [ ].
Accordingly, “an examination should not be required if it presents the possibility of danger to [a plaintiff ’s] life or health.”
The defendant explained the rational for seeking the examination
In support of the motion, defendants submitted an affidavit (dated 2/18/2021), from [their expert] Dr. Lind indicating that “[i]n order to assess the severity of each of [plaintiff ’s] medical problems a full gynecological examination is required.” Dr. Lind explained that “[a] proper inspection of the vulva. . . cannot be conducted merely by . . . [a] visual inspection” because such inspection “would only potentially allow [him] to see any scar and would not allow [him] to be able to evaluate the vagina or the pudendal nerve.” Thus “[a] one finger examination is needed in order to fully inspect the entire vulva.”
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Finally, Dr. Lind indicated, “[t]his examination would be less than five minutes in length and would require the use of a speculum, digital exam and bimanual exam of the pelvis.”
Plaintiff opposed the examination, arguing, through the affidavit of her treating physician:
Dr. Kiley indicated her specific concerns about the proposed pelvic examination, which were as follows:
“While Dr. Lind proposes classic pelvic exam techniques, those would not be revealing of her current complaints. Her current complaints mainly revolve around neuropathic pain which Gabapentin is con- trolling very well; surface pain after prolonged sit- ting; lack of flexibility on the right side; and PTSD. Neuropathy and neuropathic pain typically cannot be found on a pelvic or one finger exam. The surface pain after prolonged sitting and the lack of flexibility also would not be evaluated [by] the exam techniques proposed by Dr. Lind. Of course[,] PTSD is not evaluated by those techniques either, though in this instance those techniques could provoke it with this patient.”
The court, in a decision by Justice Presiding Dianne T. Renwick, held:
In the circumstances of this case, Supreme Court should not have limited the scope of the IME. Defendants’ motion to compel was supported by a medical expert’s affidavit showing that the comprehensive gynecological examination, which would include a pelvic examination, is necessary and material, that such examination was a routine procedure, and that it has no harmful effects. On this showing, the motion court should have allowed the comprehensive gynecological examination with the pelvic exam, particularly where plaintiff ’s medical expert does not materially controvert the opinion by defendants’ expert. Absent any support for plaintiff ’s conclusory claim that a “further” pelvic examination would be harmful, the benefit of such examination to pretrial disclosure more than outweighs the discomfort to plaintiff.
Contrary to the dissent’s allegations, the record does not support the motion court’s determination that the pelvic examination techniques were “potentially harmful” to plaintiff []. Indeed, plaintiff ’s treating physician herself classified the proposed examination as “classic pelvic exam techniques.” Moreover, the only potential harm or threat to plaintiff ’s health indicated by plaintiff ’s treating physician was that the examination could potentially trigger PTSD. However, as the motion court properly found, the treating physician’s assertion lacked any probative value as it was not accompanied by any supporting medical evidence from a treating psychiatrist or any other mental health professional. A conjectural assertion that a medical exam might trigger an unsubstantiated PTSD condition is not sufficient to warrant limiting the scope of an otherwise appropriate IME.
Conclusion
We recognize the delicate balancing highwire undertaken by all three courts in reaching their decisions, and the analysis and rationale underpinning each decision are legally supported. We also recognize that we live in a complex, often fraught world. Finally, we are rarely reluctant to express our personal opinions on court decisions, but here believe it best to leave it to the reader to do so without putting our grubby fingers on the scale (any more than we may have already).
Our next column will not hit until 2024 and, until then, we wish all of you a happy holiday season and a great start for the new year.
Reprinted with permission from the NYSBA Journal. ©2023. Further duplication without permission is prohibited. All rights reserved.
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