Here’s a common scenario: the defense lawyers send you release authorizations on standard pre-printed forms issued by the New York State Department of Health (Office of Court Administration Form 960). With the stamp of approval of the Department of Health, there can’t be anything wrong with these release authorizations, right? Not so fast, my friend.
The pre-printed forms “approved” by the Department of Health for the release of medical records and ex parte interviews between defense counsel and the plaintiff’s non-party treating physicians should never be used. The DOH “approved” authorizations provide none of the safeguards against the accidental (or intentional) disclosure of privileged medical information and non-treating physicians may mistakenly think that a private, ex parte meeting with defense counsel is mandatory.
Here are some reasons you should never use the DOH release authorizations:
Your Arons’ Authorizations must have Warnings in bold type print
In Porcelli v. Northern Westchester Hospital Center, 65 A.D.3d 176 (2nd Dep’t 2009), the Appellate Division, Second Department held that the plaintiff may include, directly on the Arons’ authorizations he provides to defense counsel, a statement that the purpose of an informal, ex parte interview sought by defense counsel is solely to assist defense counsel at trial and that participation is voluntary. The court in Porcelli held that “consistent with Arons v. Jutkowitz (9 NY3d 393), such information may be included directly on the HIPAA-compliant authorization form.”
The court in Porcelli approved warnings on the release authorizations provided to the defense counsel that:
The purpose of the requested interview with the physician is solely to assist defense counsel at trial.
The physician is not obligated to speak with defense counsel prior to trial. The interview is voluntary.
In addition to the warning admonition on the release authorization, the court in Porcelli permitted the plaintiff’s counsel to put the warning in boldface type and emphasize the warning in red with yellow highlighting. The court in Porcelli held that “the method the plaintiffs employed here—placing the admonition directly on the HIPAA-compliant authorizations and highlighting the language—is consistent with Arons, as it clearly serves the primary purpose of conveying the information in a manner that best prevents the accidental disclosure of privileged information.”
Consistent with Porcelli, I place yellow highlighting over the warnings and I added a third warning to the Arons’ authorization that reads:
Any discussion with defense counsel is entirely voluntary and MUST BE LIMITED IN SCOPE to the particular medical condition at issue in the litigation.
In order to make sure that the defense counsel uses the color version of my Arons’ authorization, I include a statement that:
This authorization is VOID if the above NOTICE is not highlighted in YELLOW.
You should object to the Arons’ release authorizations provided by the defense on pre-printed forms issued by the Department of Health. The DOH authorizations contain NO warnings or information regarding the voluntary nature of the interview or the purpose of the interview.
When the defense lawyers get the Arons’ authorization on the DOH pre-printed form, they essentially have carte blanche to meet with the plaintiff’s treating physicians under the guise that such a meeting is mandatory and there is no topic that is off limits. Non-party treating physicians have no idea what topics are off-limits in the private meetings with defense counsel. In order to prevent the accidental disclosure of privileged medical information, you must make sure your Arons’ authorizations contain the warnings and bold type print that have been specifically approved and endorsed by the Appellate Division in Porcelli.
In addition to the warnings on the Arons’ authorizations, I send letters to the nonparty treating physicians to alert them that my client prefers that they do not meet with defense counsel and I request that they allow me to attend the meet with defense counsel if they intend to meet. My letters to non-party treating physicians read, “My client prefers that you do not engage in such private discussions with anyone except us concerning any aspect of his medical condition, treatment or prognosis.” In my letter, I also alert the non-party treating physicians that, “many federal courts have recently rendered decisions holding that such authorizations and ex parte discussions are prohibited by federal law (HIPAA) and that federal law preempts state law regarding these issues.”
Always make sure you have this warning on your release authorizations provided to the defense
There are situations in which defense firms have altered medical authorizations to include the names of insurance carriers, thereby allowing insurance companies to obtain patient records. In other situations, defense firms have provided separate letters to insurance carriers to allow them to act on behalf of the defense firm. I believe that both of these practices are improper. To afford the patient the level of privacy that is guaranteed by HIPAA, the patient is entitled to know exactly who has the patient’s records. For that reason (among others), I include the following language in my standard defense medical authorization:
NOTICE: This authorization is only valid for requests for patient information that are made directly by the defendant’s attorneys who are specifically listed below. The permission granted by this authorization cannot be assigned or delegated to anyone who is not a partner or employee of the defendant’s attorneys specifically listed below. Any attempt to do so renders this authorization VOID. Should anyone other than a partner or employee of the defendant’s attorneys specifically listed below attempt to use this authorization to obtain this patient’s health information, YOU ARE INSTRUCTED NOT TO PROVIDE THAT INFORMATION and are requested to immediately contact the patient’s attorney, John H. Fisher.
The form and content of my release authorizations were specifically approved by Justice Gerald W. Connolly in Chapman v. Mastrocola, (Ulster County, Supreme Court, Index #: 09-0561), where he held that: “The Court finds the plaintiff’s forms to be fully-compliant with the authorizations required by the Arons decision….” Hence, if you have any doubt whether my release authorizations are acceptable, Justice Connolly removed any question in his Decision and Order.