New York Law Review

Tag: HIPAA

  • In re Barron, 17 N.Y.3d 33 (2011): HIPAA’s Privacy Rule and Disclosure of Medical Records in AOT Proceedings

    In re Barron, 17 N.Y.3d 33 (2011)

    The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule prohibits disclosing a patient’s medical records to a state agency for use in a proceeding to compel mental health treatment when the patient has not authorized disclosure or received notice of the request.

    Summary

    This case addresses whether HIPAA’s Privacy Rule preempts New York Mental Hygiene Law, specifically regarding the disclosure of a patient’s medical records in an Assisted Outpatient Treatment (AOT) proceeding under Kendra’s Law. The New York Court of Appeals held that the Privacy Rule does prohibit such disclosure without patient authorization or notice. The Court reasoned that the public health and treatment exceptions to the Privacy Rule do not apply in this context, and using illegally obtained records in an AOT proceeding directly impairs the patient’s privacy interests. The court emphasized the importance of balancing the public interest in mental health treatment with individual privacy rights.

    Facts

    Dr. Barron, acting for the NYC Department of Health, petitioned for an order compelling Miguel M. to receive Assisted Outpatient Treatment (AOT) under Mental Hygiene Law § 9.60. At the hearing, Dr. Barron introduced hospital records from Miguel’s prior hospitalizations. These records were obtained without notice to Miguel or a court order. Miguel objected to the admission of the records, arguing a violation of privacy, but the court admitted them.

    Procedural History

    Supreme Court ordered Miguel to receive AOT for six months. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal. Although the initial six-month order expired, the Court of Appeals addressed the merits, finding the issue novel, substantial, likely to recur, and evade review.

    Issue(s)

    1. Whether HIPAA and its Privacy Rule preempt state law allowing disclosure of medical records to a director of community services for AOT proceedings when the patient hasn’t authorized the disclosure and hasn’t been given notice.
    2. Whether medical records obtained in violation of HIPAA or the Privacy Rule are admissible in a proceeding to compel AOT.

    Holding

    1. Yes, because the disclosure of Miguel’s medical records was not permitted by any exception to the Privacy Rule, and the contrary state law is thus preempted.
    2. No, because using such records directly impairs the privacy interests protected by HIPAA and the Privacy Rule.

    Court’s Reasoning

    The Court of Appeals analyzed whether the disclosure of Miguel’s medical records fell under exceptions to HIPAA’s Privacy Rule, specifically the “public health” and “treatment” exceptions. The Court rejected the argument that using the records for AOT proceedings fell under the public health exception, stating, “To disclose private information about particular people, for the purpose of preventing those people from harming themselves or others, effects a very substantial invasion of privacy without the sort of generalized public benefit that would come from, for example, tracing the course of an infectious disease.”

    The Court also rejected the “treatment” exception, noting it was intended to facilitate information sharing among healthcare providers working together, not to mandate treatment over a patient’s objection. The court emphasized that Barron could have sought a court order or subpoena to obtain the records, which would have required notice to Miguel.

    Regarding the admissibility of the records, the Court distinguished this case from criminal cases where illegally obtained evidence might be admissible, stating, “It is one thing to allow the use of evidence resulting from an improper disclosure of information in medical records to prove that a patient has committed a crime; it is another to use the records themselves, or their contents, in a proceeding to subject to unwanted medical treatment a patient who is not accused of any wrongdoing.” The court held that using illegally obtained medical records to compel AOT directly violates the privacy interests protected by HIPAA.

    The Court acknowledged the importance of Kendra’s Law and facilitating necessary treatment for the mentally ill, but it underscored the importance of balancing this public interest with individual privacy rights. The Court concluded, “We hold only that unauthorized disclosure without notice is, under circumstances like those present here, inconsistent with the Privacy Rule.”

  • Arons v. Jutkowitz, 9 N.Y.3d 393 (2007): Permissibility of Ex Parte Interviews with Treating Physicians After HIPAA

    Arons v. Jutkowitz, 9 N.Y.3d 393 (2007)

    An attorney may conduct ex parte interviews with an adverse party’s treating physician when the party has placed their medical condition in controversy, subject to HIPAA’s procedural prerequisites.

    Summary

    This case addresses whether an attorney can privately interview an opposing party’s treating physician in a medical malpractice case. The New York Court of Appeals held that such interviews are permissible, provided the attorney adheres to the requirements of the Health Insurance Portability and Accountability Act (HIPAA). By placing their medical condition at issue in a lawsuit, a plaintiff waives the physician-patient privilege. HIPAA does not prohibit these interviews but requires either a valid authorization from the patient or a court order to ensure compliance with privacy regulations. This decision clarifies the interaction between informal discovery practices and federal patient privacy laws.

    Facts

    In three separate medical malpractice cases consolidated for appeal, plaintiffs refused to provide HIPAA-compliant authorizations allowing defense counsel to interview their treating physicians. The plaintiffs argued that defense counsel were limited to formal discovery methods under the CPLR. The defendant physicians sought these interviews to gather information relevant to the medical conditions placed at issue by the lawsuits.

    Procedural History

    In Arons v. Jutkowitz, the Supreme Court granted the defendant’s motion to compel the plaintiff to provide authorizations. The Appellate Division reversed, holding that ex parte interviews were not authorized by the CPLR. In Webb v. New York Methodist Hospital, the Supreme Court granted a similar motion, but the Appellate Division reversed based on its decision in Arons. In Kish v. Graham, the Supreme Court granted the motion to compel authorizations, but the Appellate Division reversed, again relying on Arons. The Court of Appeals granted leave to appeal in all three cases to resolve the issue.

    Issue(s)

    Whether an attorney may interview an adverse party’s treating physician privately when the adverse party has affirmatively placed his or her medical condition in controversy, subject to HIPAA’s procedural prerequisites.

    Holding

    Yes, because by bringing a lawsuit that places their medical condition at issue, a plaintiff waives the physician-patient privilege, and HIPAA does not prohibit ex parte interviews but imposes procedural requirements for obtaining protected health information.

    Court’s Reasoning

    The Court of Appeals relied on the principles established in Niesig v. Team I and Muriel Siebert & Co., Inc. v. Intuit Inc., which emphasized the importance of informal discovery practices in litigation. The court reasoned that a litigant waives the physician-patient privilege when bringing a personal injury action by affirmatively placing their mental or physical condition in issue. “[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” (Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). The court rejected the argument that the absence of express authorization for ex parte interviews in CPLR Article 31 prohibited the practice. The court emphasized that attorneys have always sought to interview potential witnesses as part of trial preparation. HIPAA does not preempt state law on ex parte interviews; instead, it imposes procedural prerequisites. To conduct an interview, an attorney must obtain a valid HIPAA authorization, a court order, or a subpoena with satisfactory assurances regarding notification or a qualified protective order. The court noted the long-standing practice of New York trial attorneys engaging in ex parte interviews with treating physicians, particularly in malpractice actions after the note of issue was filed. Finally, the court reversed the lower courts’ orders requiring defense counsel to disclose all materials obtained during the interviews, finding those stipulations inconsistent with Niesig and Siebert.