Soto et al v. The City of New York et al

Filing 135

MEMORANDUM OPINION. Plaintiffs have brought suit against the City of New York and other defendants pursuant to 42 U.S.C. § 1983 alleging claims that include alleged physical and psychological injuries resulting from the defendants' use of e xcessive force. The defendants have sought an order from this Court compelling the plaintiffs to provide releases compliant with the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936 ("HIPAA") and its regulations that would authorize plaintiffs' medical providers to orally discuss plaintiffs' health information with defense counsel. See Letter from Brian Francolla, filed October 9, 2015 (Docket #129) ("Def. Let."). Plaintif fs have opposed this request. See Letter from Fred Lichtmacher, filed October 16, 2015 (Docket #131) ("Pl. Let."). The Court granted the application at oral argument on October 20, 2015. This Memorandum Opinion sets forth the reasons for that ruling, and as further set forth in this Memorandum Opinion. (Signed by Magistrate Judge Gabriel W. Gorenstein on 10/20/2015) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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EDGAR SOTO, JR. et al.,
:
:
Plaintiffs,

MEMORANDUM OPINION
12 Civ. 6911 (RA) (GWG)

:
-v.:
THE CITY OF NEW YORK et al.,
:
Defendants.
:
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GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs have brought suit against the City of New York and other defendants pursuant
to 42 U.S.C. § 1983 alleging claims that include alleged physical and psychological injuries
resulting from the defendants’ use of excessive force. The defendants have sought an order from
this Court compelling the plaintiffs to provide releases compliant with the Health Insurance
Portability and Accountability Act of 1996, Pub. L. 104–191, 110 Stat. 1936 (“HIPAA”) and its
regulations that would authorize plaintiffs’ medical providers to orally discuss plaintiffs’ health
information with defense counsel. See Letter from Brian Francolla, filed October 9, 2015
(Docket # 129) (“Def. Let.”). Plaintiffs have opposed this request. See Letter from Fred
Lichtmacher, filed October 16, 2015 (Docket # 131) (“Pl. Let.”). The Court granted the
application at oral argument on October 20, 2015. This Memorandum Opinion sets forth the
reasons for that ruling.
The plaintiffs’ claims in this case relate in part to the injuries they received as a result of
the defendants’ conduct. See Complaint, filed September 12, 2012 (Docket # 1) ¶¶ 21-47. Thus,
plaintiffs have forfeited their right to claim privacy in the records of their medical treatment.
See generally Romano v. SLS Residential Inc., 298 F.R.D. 103, 112 (S.D.N.Y. 2014) (“by

bringing a lawsuit a patient or other holder of a privilege will be deemed to have waived the
pertinent privilege for records relevant to his or her claims”). Indeed, plaintiffs recognize as
much, having executed forms that authorize the release of their written medical records to the
defendants. All that is at issue here is their refusal to authorize their medical providers to engage
in oral discussions of their medical condition with defendants’ attorneys. At the October 20,
2015 conference, counsel represented that there are approximately 90 medical providers at issue.
Defendants state that
absent the access requested, defendants would be forced to expend substantial
resources in an effort to depose any and all medical professionals who could
potentially be witnesses they would like to call at trial. Not only would this
approach constitute an extremely inefficient use of the parties’ time and
resources, it would unnecessarily tie up the time of medical professionals whose
potential involvement in this case could otherwise be ascertained through a brief
conversation over the phone.
Def. Let. at 2-3.
The plaintiffs characterize the defendants’ request as an attempt to obtain “ex parte”
interviews with these witnesses. Pl. Let. at 1. They assert that the defendants’ request should be
denied because “there has been an insufficient showing of need to conduct such interviews.” Id.
Were it not for statutory restrictions placed on the release of medical information and
common-law privileges regarding physician-patient communications, defendants could simply
contact the medical providers without court involvement since normally nothing stops an
attorney from contacting an unrepresented witness directly. Indeed, under New York law, “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” as long as the “procedural
prerequisites” of HIPAA are satisfied. Arons v. Jutkowitz, 9 N.Y. 3d 393, 402 (2007).
Here, HIPAA, rather than any New York state privilege, applies inasmuch as this case
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arises under federal law. See Nat’l Abortion Fed’n v. Ashcroft, 2004 WL 555701, at *4-6
(S.D.N.Y. Mar. 19, 2004) (New York privilege law, even if it is more stringent than HIPAA,
does not apply to a federal claim). HIPAA and its governing regulations impose no substantive
restrictions on what type of health information a provider may release — or the manner in which
it may be communicated — in situations where the patient provides a written authorization that
complies with the regulations, see 45 C.F.R. § 164.508 (2013).
Plaintiffs assert that defendants are not entitled to obtain a release from plaintiffs
permitting the medical providers to discuss plaintiffs’ medical condition because defendants
have not shown a “need” to conduct the interviews. Pl. Let. at 1. But the information sought is
plainly relevant and plaintiffs concede that defendants would be entitled to have it were it sought
by means of a deposition. The only legal barrier to their making the contact with the physicians
— the HIPAA statute and regulations — does not speak to the issue of whether the medical
information must be withheld from defendants. It is thus unclear why defendants should be
required to make a showing of “need.” Plaintiffs do not dispute that the Court would have
authority to order them to sign a release for the written medical information at issue. Indeed,
case law has repeatedly confirmed a court’s authority to order a party to execute a release for
medical information. See, e.g., Woodall v. Pitchard, 2012 WL 1113605, at *2 (W.D.N.Y. Mar.
30, 2012) (such orders are “standard procedure”) (citation and internal quotation marks omitted);
accord Hockenjos v. City of New York, 2014 WL 3530895, at *4 (E.D.N.Y. May 30, 2014); see
also Jones v. King, 2013 WL 815863, at *4 (S.D.N.Y. Mar. 4, 2013) (requiring party to sign
release); Ashley v. Daniels, 2009 WL 1739898, at *1 (S.D.N.Y. June 17, 2009) (same). The
Court does not believe it is any less appropriate to require an authorization that permits the
transmission of such information orally rather than in writing.
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Of course, assuming the medical providers agree to speak, plaintiffs will not have the
same access to the information that they would have enjoyed if the providers were transmitting
written records to defendants. But the law already recognizes the appropriateness of an attorney
having contact with an unrepresented person outside the discovery process. See, e.g., Arons, 9
N.Y. 3d at 402. In light of the fact that plaintiffs cannot claim a privacy interest in the medical
information relating to their claims in this case, there is no reason why the defendants should not
be permitted to have contact with the medical providers in the same manner they are permitted to
have contact with any other non-party witness.
Sforza v. City of New York, 2008 WL 4701313 (S.D.N.Y. Oct. 24, 2008), reached the
same result. In Sforza, the defendants sought either an order requiring the plaintiff to sign a
HIPAA release permitting the defendants to contact certain medical providers or an order that
would permit the medical providers to provide the information. Id. at *1. Plaintiff opposed the
application on the grounds that oral interviews could not be authorized with a HIPAA release,
and that any oral discovery could occur “only in the context of a deposition,” Id. Sforza rejected
that argument. The court noted that the HIPAA regulations, 45 C.F.R. § 164.512(e)(1), allow
disclosure pursuant to court order or subpoena once “certain conditions, principally concerning
notice to the affected person, are met.” Sforza, 2008 WL 4701313, at *2. The Court found
nothing in HIPAA that further restricted a medical provider’s ability to provide health
information to the defendants. See id. at *3. Sforza noted that such “ex parte” interviews “may
very well alleviate the need to take [the witnesses’] depositions and save the plaintiff,
defendants, and the [witnesses] the cost and burden of more formal discovery.” Id.
Plaintiffs argue that Sforza is incorrectly decided but provides little explanation of what
the flaw is in its reasoning. Their letter cites to the same cases that Sforza either distinguished or
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rejected. We too find these cases unpersuasive. Eng v. Blood, 2008 WL 2788894, at *5
(N.D.N.Y. July 17, 2008), denied requests for HIPAA authorizations similar to those requested
here but never gave a reason for the denial other than to say that there was “no need” for such
authorizations. It is thus unclear what the nature was of the “need” that had to be proven and
what was the source of this requirement. Fralick v. Chautauqua County Chapter of Am. Nat’l
Red Cross, 2007 WL 475322 (W.D.N.Y. Feb. 9, 2007), denied a request for ex parte interview
authorizations because defendants had not “demonstrated good cause” for an order permitting
the interviews under Fed. R. Civ. P. 26(c). Id. at *2. We do not see why Rule 26(c) would have
placed any burden on the defendants to show “good cause,” however, inasmuch as Rule 26(c)
applies where a party asks the court to issue an order “to protect a party or person from” the
adverse consequences of discovery, such as undue burden or expense. The defendants were not
seeking such an order in Fralick. Nor have defendants sought such an order here.
Finally, Equal Emp’t Opportunity Comm’n v. Boston Mkt. Corp., 2004 WL 3327264
(E.D.N.Y. Dec. 16, 2004), found that the plaintiff had “waived the privilege applying to health
information that she has put at issue.” Id. at *6. The court refused to grant the order permitting
“ex parte” interviews with the medical providers, however, because of HIPAA’s “strong federal
policy in favor of protecting the privacy of patient medical records,” id. at *5. The court never
explained, however, why the policy embodied in HIPAA should continue in force where, as the
court itself recognized, plaintiff had waived her claim to privacy by filing the lawsuit, id. at *6.
Thus, we do not accept the reasoning of Boston Mkt. Corp.
Because plaintiffs here have placed the medical information sought by defendants at
issue by bringing this lawsuit, the Court has directed them to execute authorizations that permit
the oral transmission of the medical information to defendants’s counsel. Obviously, nothing
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herein should be construed as requiring the medical providers to speak to defendants’ counsel.
SO ORDERED.
Dated: October 20, 2015
New York, New York

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