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November 27, 2007
Arons v. Jutkowitz Court of Appeals
Guiding Principle:
Physicians may informally meet with and grant private interviews to defense attorneys who are defending another physician in a medical malpractice case, provided that the defense attorney provides the physician with a HIPAA-compliant authorization signed by the patient allowing the meeting to take place.
Summary of Facts:
This appeal actually involved three separate cases. In each case, the plaintiff-patient had brought a medical malpractice action against a physician. The attorneys defending the physicians sought to privately meet with and interview the patients' treating physicians, rather than attempting to take their formal depositions.
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January 23, 2007
Olexa v. Jacobs Appellate Division Second Department
Physicians may informally meet with and grant private interviews to defense attorneys who are defending another physician in a medical malpractice case, provided that the defense attorney provides the physician with a HIPAA-compliant authorization signed by the patient allowing the meeting to take place.
Summary of Facts:
This appeal actually involved three separate cases. In each case, the plaintiff-patient had brought a medical malpractice action against a physician. The attorneys defending the physicians sought to privately meet with and interview the patients' treating physicians, rather than attempting to take their formal depositions.
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The plaintiff-patients refused to provide the defense attorneys with HIPAA-compliant authorizations allowing the meetings to take place. The defense attorneys then asked the court to require the patient-plaintiff to provide the authorizations. The lower courts disagreed on whether these meetings were permissible. The Court of Appeals was called upon to decide the issue.
Ruling of the Court:
The Court of Appeals – the highest court in the New York State judicial system – held that private interviews may take place, as long as defense attorneys follow certain guidelines.
Reasoning:
In cases other than medical malpractice, defense attorneys traditionally have been free to informally interview individuals who witnessed events important to the lawsuit. Thus, for example, in a typical auto accident case, defense attorneys often contact and interview witnesses to the accident. This type of informal discussion can uncover relevant facts in a quick and inexpensive manner.
Before HIPAA, the courts permitted defense counsel in medical malpractice actions to conduct private interviews with the patient's treating physicians once the case was certified as ready for trial. Once HIPAA was enacted, however, physicians and courts were uncertain about whether these type of informal interviews were permissible. The Court of Appeals has now made clear that informal interviews are indeed permissible, as long as certain steps are followed, as discussed below. The Court of Appeals noted that when a patient becomes a litigant in a personal injury lawsuit, he or she waives the physician-patient privilege, because by bringing suit, the patient's mental or physical condition is placed in issue. Therefore, the patient cannot refuse to sign an authorization permitting defense counsel to informally meet with a treating physician.
In sum, defense counsel may interview a treating physician at any time during the course of the litigation. The attorney must inform the physician whom he or she represents, that the discussion is entirely voluntary on the physician's part, and that the discussion will be limited in scope to the particular medical condition at issue in the litigation. The treating physician is free to decide whether or not to grant an informal interview.
This decision of interest is not an official citation, and should not be cited as such, nor is it intended to provide any legal advice. For the full text of the uncorrected decision , visit http://www.courts.state.ny.us/reporter/.
Ruling of the Court:
The Court of Appeals – the highest court in the New York State judicial system – held that private interviews may take place, as long as defense attorneys follow certain guidelines.
Reasoning:
In cases other than medical malpractice, defense attorneys traditionally have been free to informally interview individuals who witnessed events important to the lawsuit. Thus, for example, in a typical auto accident case, defense attorneys often contact and interview witnesses to the accident. This type of informal discussion can uncover relevant facts in a quick and inexpensive manner.
Before HIPAA, the courts permitted defense counsel in medical malpractice actions to conduct private interviews with the patient's treating physicians once the case was certified as ready for trial. Once HIPAA was enacted, however, physicians and courts were uncertain about whether these type of informal interviews were permissible. The Court of Appeals has now made clear that informal interviews are indeed permissible, as long as certain steps are followed, as discussed below. The Court of Appeals noted that when a patient becomes a litigant in a personal injury lawsuit, he or she waives the physician-patient privilege, because by bringing suit, the patient's mental or physical condition is placed in issue. Therefore, the patient cannot refuse to sign an authorization permitting defense counsel to informally meet with a treating physician.
In sum, defense counsel may interview a treating physician at any time during the course of the litigation. The attorney must inform the physician whom he or she represents, that the discussion is entirely voluntary on the physician's part, and that the discussion will be limited in scope to the particular medical condition at issue in the litigation. The treating physician is free to decide whether or not to grant an informal interview.
This decision of interest is not an official citation, and should not be cited as such, nor is it intended to provide any legal advice. For the full text of the uncorrected decision , visit http://www.courts.state.ny.us/reporter/.
Guiding Principle:
The defendant radiologist was entitled to obtain possession of the original mammograms, which were in plaintiff's custody, for a limited time so that defendant expert could review them. If defendant radiologist failed to return the original films the court would consider at that time the appropriate sanction for spoliation (the negligent or intentional loss or destruction of crucial evidence).
Summary of Facts:
Plaintiff Emilia Olexa brought a medical malpractice action to recover damages against defendants Betsy Jacobs and Advanced Radiological Imaging, P.C. Plaintiff was in possession of the original mammograms and resisted providing defendants access to them without a court order.
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March 18, 2008
Germaine v. Yu,et al. Appellate Division Second Department
The defendant radiologist was entitled to obtain possession of the original mammograms, which were in plaintiff's custody, for a limited time so that defendant expert could review them. If defendant radiologist failed to return the original films the court would consider at that time the appropriate sanction for spoliation (the negligent or intentional loss or destruction of crucial evidence).
Summary of Facts:
Plaintiff Emilia Olexa brought a medical malpractice action to recover damages against defendants Betsy Jacobs and Advanced Radiological Imaging, P.C. Plaintiff was in possession of the original mammograms and resisted providing defendants access to them without a court order.
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The lower court granted defendants an order allowing very limited access to the mammograms and providing a conditional remedy that if the films were not returned, the defendants' answer would be stricken. The defendants appealed this order.
Ruling of the Court:
A unanimous Appellate Division found that the lower court erred in placing overly restrictive limits on the defendants' time to review the original mammograms and enlarged the defendants' access to them. Further, the court struck that part of the lower court's order which provided that the defendants' answer would be stricken if they failed to return the original films as such a remedy was premature without the proper showing based on the destruction or loss of evidence.
Reasoning:
This case addresses the dire results that may occur if a party is found responsible for spoliation of evidence. While the Appellate Division in Olexa declined to set forth conditional sanctions because spoliation of the mammograms was speculative, it is clear that either a plaintiff's complaint or a defendant's answer may be stricken, thus losing the case, as a sanction for spoliation. Further, spoliation sanctions may be appropriate even if the destruction occurred through negligence rather than willfulness, and even if the evidence was destroyed before the spoliator became a party. Physicians should bear in mind that under the New York Public Health Law and the regulations promulgated thereunder, they are required to retain patient records for at least six years. Obstetrical records and records of infants or children must be maintained until the child reaches his or her 22nd birthday. If the lost or destroyed material would have been key evidence in the medical malpractice case, severe sanctions may follow. It is also worthy to note that loss or destruction of patient records may trigger disciplinary action by the licensing authority against the physician.
Editor's Note:
In medical malpractice cases, spoliation can take several forms: loss of radiographic films, pathology slides, fetal monitor strips, etc; alteration of medical notes; failure to provide the entire hospital chart or medical record. The possible loss of the right to defend your case due to spoliation merits renewed vigilance with respect to maintenance and custody of medical charts and records.
This decision of interest is not an official citation, and should not be cited as such, nor is it intended to provide any legal advice. For the full text of the uncorrected decision , visit http://www.courts.state.ny.us/reporter/.
Ruling of the Court:
A unanimous Appellate Division found that the lower court erred in placing overly restrictive limits on the defendants' time to review the original mammograms and enlarged the defendants' access to them. Further, the court struck that part of the lower court's order which provided that the defendants' answer would be stricken if they failed to return the original films as such a remedy was premature without the proper showing based on the destruction or loss of evidence.
Reasoning:
This case addresses the dire results that may occur if a party is found responsible for spoliation of evidence. While the Appellate Division in Olexa declined to set forth conditional sanctions because spoliation of the mammograms was speculative, it is clear that either a plaintiff's complaint or a defendant's answer may be stricken, thus losing the case, as a sanction for spoliation. Further, spoliation sanctions may be appropriate even if the destruction occurred through negligence rather than willfulness, and even if the evidence was destroyed before the spoliator became a party. Physicians should bear in mind that under the New York Public Health Law and the regulations promulgated thereunder, they are required to retain patient records for at least six years. Obstetrical records and records of infants or children must be maintained until the child reaches his or her 22nd birthday. If the lost or destroyed material would have been key evidence in the medical malpractice case, severe sanctions may follow. It is also worthy to note that loss or destruction of patient records may trigger disciplinary action by the licensing authority against the physician.
Editor's Note:
In medical malpractice cases, spoliation can take several forms: loss of radiographic films, pathology slides, fetal monitor strips, etc; alteration of medical notes; failure to provide the entire hospital chart or medical record. The possible loss of the right to defend your case due to spoliation merits renewed vigilance with respect to maintenance and custody of medical charts and records.
This decision of interest is not an official citation, and should not be cited as such, nor is it intended to provide any legal advice. For the full text of the uncorrected decision , visit http://www.courts.state.ny.us/reporter/.
Guiding Principle:
An attending physician is not responsible for any medical malpractice that may occur in the treatment of a hospital patient after the attending physician transfers the responsibility of the patient's care to another attending physician and leaves the hospital.
Summary of Facts:
Plaintiff Florence Germaine brought a medical malpractice action to recover damages against a resident physician and an attending physician, Dr. S., both of whom treated the plaintiff at the emergency room of Stony Brook Hospital.
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An attending physician is not responsible for any medical malpractice that may occur in the treatment of a hospital patient after the attending physician transfers the responsibility of the patient's care to another attending physician and leaves the hospital.
Summary of Facts:
Plaintiff Florence Germaine brought a medical malpractice action to recover damages against a resident physician and an attending physician, Dr. S., both of whom treated the plaintiff at the emergency room of Stony Brook Hospital.
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The plaintiff presented at the emergency room complaining of abdominal pain, nausea, and constipation. Both the resident and attending physician examined the plaintiff and several tests were ordered. Three hours later, the attending physician's shift ended and he left the hospital after transferring the plaintiff's care to another attending physician. The plaintiff remained in the hospital while further tests were ordered and completed, and the resident continued to care for her. Five hours later the plaintiff was discharged with a diagnosis of diverticulitis. Three days later, she was admitted to another hospital where she underwent emergency surgery for peritonitis and a perforated sigmoid colon.
The plaintiff sued the resident and the attending, Dr. S., arguing, among other things, that those physicians committed medical malpractice in their negligent decision to discharge her from the hospital and their negligence caused her to be subsequently hospitalized and undergo surgery. The plaintiff further claimed Dr. S. was negligent in his failure to adequately supervise the resident.
Dr. S. made a motion for summary judgment in the lower court wherein he argued that he provided proper care for the plaintiff and thereafter transferred her care to another attending physician when he left the hospital. The lower court denied the motion and Dr. S. appealed.
Ruling of the Court:
A unanimous Appellate Division reversed the lower court's decision and ruled that Dr. S. properly transferred responsibility for the care of the plaintiff to another attending physician, and thus was not responsible for any departures from accepted medical practice that occurred thereafter in either the supervision of the resident or the decision to discharge the plaintiff.
Reasoning:
The Appellate Division noted that the plaintiff failed to provide proof adequate to defeat Dr. S.'s evidence that he transferred responsibility for the plaintiff's care to another attending physician five hours before the plaintiff was discharged from the hospital. Hence he was not responsible for any care given to the plaintiff after he left, including any subsequent care provided by the resident physician.
Editor's Note:
It is important to note in this case that Dr. S. was able to prove, via an expert's affidavit, that he transferred the plaintiff's care to another attending physician and that any negligence that occurred in the plaintiff's care occurred after his care. Hence, Dr. S. was no longer responsible for the actions of the resident once he left. Responsibility for the resident's care was transferred to the new attending physician. The facts of this case, and the Appellate Court's reasoning, are important insofar as they may limit an attending physician's liability for any malpractice committed by residents of a hospital.
This decision of interest is not an official citation, and should not be cited as such, nor is it intended to provide any legal advice. For the full text of the uncorrected decision , visit http://www.courts.state.ny.us/reporter/.
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The plaintiff sued the resident and the attending, Dr. S., arguing, among other things, that those physicians committed medical malpractice in their negligent decision to discharge her from the hospital and their negligence caused her to be subsequently hospitalized and undergo surgery. The plaintiff further claimed Dr. S. was negligent in his failure to adequately supervise the resident.
Dr. S. made a motion for summary judgment in the lower court wherein he argued that he provided proper care for the plaintiff and thereafter transferred her care to another attending physician when he left the hospital. The lower court denied the motion and Dr. S. appealed.
Ruling of the Court:
A unanimous Appellate Division reversed the lower court's decision and ruled that Dr. S. properly transferred responsibility for the care of the plaintiff to another attending physician, and thus was not responsible for any departures from accepted medical practice that occurred thereafter in either the supervision of the resident or the decision to discharge the plaintiff.
Reasoning:
The Appellate Division noted that the plaintiff failed to provide proof adequate to defeat Dr. S.'s evidence that he transferred responsibility for the plaintiff's care to another attending physician five hours before the plaintiff was discharged from the hospital. Hence he was not responsible for any care given to the plaintiff after he left, including any subsequent care provided by the resident physician.
Editor's Note:
It is important to note in this case that Dr. S. was able to prove, via an expert's affidavit, that he transferred the plaintiff's care to another attending physician and that any negligence that occurred in the plaintiff's care occurred after his care. Hence, Dr. S. was no longer responsible for the actions of the resident once he left. Responsibility for the resident's care was transferred to the new attending physician. The facts of this case, and the Appellate Court's reasoning, are important insofar as they may limit an attending physician's liability for any malpractice committed by residents of a hospital.
This decision of interest is not an official citation, and should not be cited as such, nor is it intended to provide any legal advice. For the full text of the uncorrected decision , visit http://www.courts.state.ny.us/reporter/.