Verdicts

Defendants claimed that they were entitled to speak to plaintiff's treating physicians after the note of issue was filed and before trial. The issue that has arisen since HIPAA's Privacy Rule was implemented involves the practical problem defense counsel are encountering in attempting to interview a plaintiff's treating physicians after a note of issue has been filed and in preparation for the potential trial testimony of such physicians. Specifically, treating physicians are requiring either written authorizations signed by the plaintiff which comply with HIPAA and which permit oral communications, or a court order authorizing such oral communications which likewise comply with HIPAA.

The operative question, therefore, was whether New York Law, which holds that the filing of a personal injury suit waives the physician-patient privilege with regard to the claimed injury, trumped HIPAA and, if not, whether the filing of a lawsuit also waives the physician-patient privilege under HIPAA.

The court here found that HIPAA did not create any substantive rights or remedies for plaintiffs. “In fact,” said the court, “the Seventh Circuit has held that HIPAA did not create a federal physician-patient privilege and that the Privacy Rule is procedural in nature (Northwestern Memorial Hosp. V. Ashcroft, 362 F.3d 923 (7th Cir. 2004). This point is further underscored by the fact that all the district courts that have addressed the issue have found that HIPAA does not create any private right of action. Instead, patients who perceive themselves aggrieved by non-compliance with HIPAA are relegated to filing a complaint pursuing an administrative process under HIPAA, thereby allowing the Secretary of HHS to pursue any rights or remedies on behalf of the patient (see, eg, Rigaud v. Garofolo, 2005 U.S. Dist. LEXIS 7791 (ED PA 5/2/05); Johnson v. Quander, 2005 U.S. Dist LEXIS 5020 (DC 3/21/05).”

Nevertheless, even if it were proper to conclude that HIPPA did create some form of rights or remedies for plaintiffs in state litigation, the court here found it proper to apply the reasoning of the Court of Appeals of New York in Koump v. Smith, 25 N.Y.2d 287 (1969), where it was held that waiver of the privilege was necessarily implied by the filing of a personal injury suit as, otherwise, manifest unfairness to the defendant would result. Thus, any rights or remedies the plaintiff claimed to possess under HIPAA in New York litigation must be deemed to have been waived in the context of that litigation just as the physician-patient privilege was deemed to have been waived in Koump. “[T]o construe any HIPAA rights as a sword against defendants but as a shield for plaintiffs would have the same unfair result which the Court of Appeals guarded against in Koump,” stated the court. “Accordingly, this court holds that by bringing or defending a personal injury action in which a party's mental or physical condition is affirmatively raised, that party waives any rights or remedies under HIPAA as to the mental or physical conditions asserted in the litigation.”

Despite this, the motion to compel plaintiff to execute authorizations permitting oral interviews of her treating physicians was denied because, before HIPAA was enacted, defense counsel had dealt with the problem not through statute or regulation requiring authorizations for oral interviews but apparently by reminding physicians that the physician-patient privilege had been waived and by providing physicians with a records authorization and/or trial subpoena. Given the court's conclusion that any HIPAA rights plaintiff possessed had been waived, it found this practice need not change.

Plaintiff Told Connecticut Consumer Law Does Not Apply

Neither an allegation that hospital defendants misrepresented their staffing levels nor the allegation that they misrepresented the quality of their emergency obstetrical care was sufficient to state a viable claim under the Connecticut Unfair Trade Practices Act (CUTPA), Conn. Gen. Stat. ' 42-110b, et seq. Vincent v. Essent Healthcare of Connecticut Inc., 2005 U.S. Dist. LEXIS 8856 (D. Con. 5/12/05).

Plaintiffs, an injured infant and her mother, filed claims against the defendant hospital and its partner corporations alleging, along with medical malpractice, a violation of the CUTPA. The CUTPA claim alleged that the defendants engaged in unfair or deceptive trade practices within the meaning of the statute by misrepresenting the quality of the hospital in promotional materials and by failing to state in advertisements that “due to profitability and other entrepreneurial reasons they would have insufficient staff available and prepared to perform emergency cesarean sections and other essential obstetrical treatment.”

Connecticut's Supreme Court has held that “although physicians and other health care providers are subject to CUTPA, they may be liable only for 'unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of the practice of medicine.'” Janusauskas v. Fichman, 264 Conn. 796 (Conn. 2003) (quoting Haynes v. Yale-New Haven Hospital, 243 Conn. 17 (Conn. 1997). Plaintiffs, however, are not permitted to transform every claim for malpractice into a CUTPA claim. While the solicitation of business is not a medical aspect of a health care provider's practice and as such may be regulated under the CUPTA, no violation will be found unless the advertising is unfair, unconscionable or deceptive. The court found here that the defendant's representation concerning the quality of care available at its facility did not meet this standard because it was simply what all physicians and health care providers represent to the public – that they are licensed and, impliedly, that they will meet the applicable standards of care. If they fail to meet the standard of care and harm results, the remedy is not one based upon CUTPA, but upon malpractice.

Furthermore, the Connecticut Supreme Court held in Haynes that a claim based on “the adequacy of staffing” is a claim concerning “medical competence,” not trade practices, and thus cannot state a CUTPA claim. Thus, the defendants' motion to dismiss the CUTPA claims was granted.

New York Court Holds HIPAA Does Not Protect Plaintiff Privacy

A New York trial court has held that because the Health Insurance Portability and Accountability Act (HIPAA) does not create a private right of action in a patient, New York law applies when a patient brings suit for injuries, and because the law in New York holds that a patient waives his or her medical privacy rights with respect to the injuries complained of when suit is brought, the plaintiff here similarly waived her right to medical privacy when she filed suit. Holzle v. Healthcare Services Group Incl. , 2005 NY Slip Op 50770U; 2005 N.Y. Misc. LEXIS 1031 (Sup. Ct., N.Y. Cty. 5/24/05).

Plaintiffs brought suit in 2001 alleging, among other things, that plaintiff Tammy Holzle suffered personal injuries as a result of a fall at the geriatric center owned by defendant HSG in 1998. On Jan. 12, 2005, HSG demanded that plaintiff provide authorizations permitting defense counsel to speak with plaintiff's treating physicians. Plaintiff rejected the demand for the authorizations, which precipitated defendants' motions here to compel plaintiff to execute such authorizations.

Defendants claimed that they were entitled to speak to plaintiff's treating physicians after the note of issue was filed and before trial. The issue that has arisen since HIPAA's Privacy Rule was implemented involves the practical problem defense counsel are encountering in attempting to interview a plaintiff's treating physicians after a note of issue has been filed and in preparation for the potential trial testimony of such physicians. Specifically, treating physicians are requiring either written authorizations signed by the plaintiff which comply with HIPAA and which permit oral communications, or a court order authorizing such oral communications which likewise comply with HIPAA.

The operative question, therefore, was whether New York Law, which holds that the filing of a personal injury suit waives the physician-patient privilege with regard to the claimed injury, trumped HIPAA and, if not, whether the filing of a lawsuit also waives the physician-patient privilege under HIPAA.

The court here found that HIPAA did not create any substantive rights or remedies for plaintiffs. “In fact,” said the court, “the Seventh Circuit has held that HIPAA did not create a federal physician-patient privilege and that the Privacy Rule is procedural in nature ( Northwestern Memorial Hosp. V. Ashcroft , 362 F.3d 923 (7th Cir. 2004). This point is further underscored by the fact that all the district courts that have addressed the issue have found that HIPAA does not create any private right of action. Instead, patients who perceive themselves aggrieved by non-compliance with HIPAA are relegated to filing a complaint pursuing an administrative process under HIPAA, thereby allowing the Secretary of HHS to pursue any rights or remedies on behalf of the patient (see, eg, Rigaud v. Garofolo, 2005 U.S. Dist. LEXIS 7791 (ED PA 5/2/05); Johnson v. Quander, 2005 U.S. Dist LEXIS 5020 (DC 3/21/05).”

Nevertheless, even if it were proper to conclude that HIPPA did create some form of rights or remedies for plaintiffs in state litigation, the court here found it proper to apply the reasoning of the Court of Appeals of New York in Koump v. Smith , 25 N.Y.2d 287 (1969), where it was held that waiver of the privilege was necessarily implied by the filing of a personal injury suit as, otherwise, manifest unfairness to the defendant would result. Thus, any rights or remedies the plaintiff claimed to possess under HIPAA in New York litigation must be deemed to have been waived in the context of that litigation just as the physician-patient privilege was deemed to have been waived in Koump. “[T]o construe any HIPAA rights as a sword against defendants but as a shield for plaintiffs would have the same unfair result which the Court of Appeals guarded against in Koump,” stated the court. “Accordingly, this court holds that by bringing or defending a personal injury action in which a party's mental or physical condition is affirmatively raised, that party waives any rights or remedies under HIPAA as to the mental or physical conditions asserted in the litigation.”

Despite this, the motion to compel plaintiff to execute authorizations permitting oral interviews of her treating physicians was denied because, before HIPAA was enacted, defense counsel had dealt with the problem not through statute or regulation requiring authorizations for oral interviews but apparently by reminding physicians that the physician-patient privilege had been waived and by providing physicians with a records authorization and/or trial subpoena. Given the court's conclusion that any HIPAA rights plaintiff possessed had been waived, it found this practice need not change.

Plaintiff Told Connecticut Consumer Law Does Not Apply

Neither an allegation that hospital defendants misrepresented their staffing levels nor the allegation that they misrepresented the quality of their emergency obstetrical care was sufficient to state a viable claim under the Connecticut Unfair Trade Practices Act (CUTPA), Conn. Gen. Stat. ' 42-110b, et seq. Vincent v. Essent Healthcare of Connecticut Inc., 2005 U.S. Dist. LEXIS 8856 (D. Con. 5/12/05).

Plaintiffs, an injured infant and her mother, filed claims against the defendant hospital and its partner corporations alleging, along with medical malpractice, a violation of the CUTPA. The CUTPA claim alleged that the defendants engaged in unfair or deceptive trade practices within the meaning of the statute by misrepresenting the quality of the hospital in promotional materials and by failing to state in advertisements that “due to profitability and other entrepreneurial reasons they would have insufficient staff available and prepared to perform emergency cesarean sections and other essential obstetrical treatment.”

Connecticut's Supreme Court has held that “although physicians and other health care providers are subject to CUTPA, they may be liable only for 'unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of the practice of medicine.'” Janusauskas v. Fichman , 264 Conn. 796 (Conn. 2003) ( quoting Haynes v. Yale-New Haven Hospital , 243 Conn. 17 (Conn. 1997). Plaintiffs, however, are not permitted to transform every claim for malpractice into a CUTPA claim. While the solicitation of business is not a medical aspect of a health care provider's practice and as such may be regulated under the CUPTA, no violation will be found unless the advertising is unfair, unconscionable or deceptive. The court found here that the defendant's representation concerning the quality of care available at its facility did not meet this standard because it was simply what all physicians and health care providers represent to the public – that they are licensed and, impliedly, that they will meet the applicable standards of care. If they fail to meet the standard of care and harm results, the remedy is not one based upon CUTPA, but upon malpractice.

Furthermore, the Connecticut Supreme Court held in Haynes that a claim based on “the adequacy of staffing” is a claim concerning “medical competence,” not trade practices, and thus cannot state a CUTPA claim. Thus, the defendants' motion to dismiss the CUTPA claims was granted.