September, 2003

1. OBTAINING COMPLETE MEDICAL RECORDS BECOMES MUCH MORE DIFFICULT ON SEPTEMBER 1, 2003, THE EFFECTIVE DATE OF CPLR 3122(a)

On September 1, 2003, an amendment to CPLR 3122(a) will become effective in relation to the production of non-party business records. The purpose of this amendment is to simplify methods for obtaining discovery of documents from non-party witnesses and procuring their admission into evidence. According to the state legislature, by doing so it should alleviate burdens upon the litigants, non-party witnesses and the courts.

What this new amendment does, however, is significantly restrict an attorney’s power to obtain, by means of trial subpoenas, complete medical records of a plaintiff. As amended, CPLR 3122(a) will provide, in pertinent part, as follows:

3122. Objection to disclosure, inspection or examination; compliance.

(1) . . . A medical provider served with a subpoena duces tecum requesting the production of a patient’s medical records pursuant to this rule need not respond or object to the subpoena if the subpoena is not accompanied by a written authorization by the patient. Any subpoena served upon a medical provider requesting the medical records of a patient shall state in conspicuous bold-faced type that the records shall not be provided unless the subpoena is accompanied by a written authorization by the patient . . . [emphasis added].

The amendment to CPLR 3122(a) is the second recent statutory enactment restricting the opportunities of defense counsel to obtain pertinent medical records. As we had informed you in our May, 2003 edition of Summing Up, the requirements of HIPAA (Health Insurance Portability and Accountability Act), enacted by Congress, permits plaintiff’s counsel to impose severe restrictions within medical authorizations. Prior to the amendment to CPLR 3122, restrictive authorizations from plaintiff’s counsel limiting the scope of medical records available to the defendant were, in some instances, tolerable. This was true given the fact that, ultimately, a complete set of medical records could be subpoenaed to court at the time of trial. Now, with the amendment of CPLR 3122(a), subpoenaing a complete set of a plaintiff’s medical records to court at the time of trial becomes more difficult as well.

Although even before the amendment to CPLR 3122(a) one would be ill-advised to overlook restrictive authorizations, it has now become more important than ever to ensure that a complete set of medical records be obtained. This effort should be undertaken early in the litigation process during the discovery phase rather than at the time of trial. If court intervention is necessary, it should be immediately pursued. Also, when court intervention is sought, care should be taken to create an appropriate record for appellate review.

James S. Curtis