First Department’s Instructions To Defense Attorneys Seeking Fully Executed HIPAA Authorizations
November 15, 2012 Posted By Karen M. Mahon Trial Practice
Compelling a plaintiff to authorize release of medical records pertaining to alcohol and drug treatment, mental health information, and HIV-related information is possible if one provides the court with sufficient documented evidence that the information being sought is reasonably connected to the plaintiff current claim and/or injuries.
In Budano v. Gurdon, 2012 NY Slip Op 05704, the First Department upheld an Order issued by Justice Laura Douglas, Supreme Court, Bronx County, which denied defense counsel’s motion to compel the plaintiff to provided fully executed HIPAA authorizations or, in the alternative, to submit the plaintiff’s medical records to the court for an in camera inspection. The First Department upheld Justice Douglas’ order which granted the plaintiff’s cross-motion for a protective order. In providing the rationale for their decision, the First Department provided explicit instructions for defense attorneys seeking such presumably protected information.
First, if a plaintiff testifies at his or her deposition regarding past treatment for alcohol or drug abuse, attach the transcript to the moving papers. This would seem to be obvious, but it was not done in Budano and was consequently used as a basis to deny the defense counsel’s motion. Second, make a reasonable connection between the records sought and the cause of the accident or the injuries sustained. An affidavit of an attorney asserting a connection will be deemed to be mere speculation. Third, support any alleged connection with competent evidence in the record such as an affidavit from an expert or an individual with personal knowledge. Without such support, the court will deem the exercise as a mere fishing expedition and the plaintiff true medical condition pre-accident will never be revealed.