• 21
  • July
    2010
The physician-patient privilege is something we take for granted.  We expect that when we go to the doctor we can be totally open and honest and share our personal details secure in the knowledge that the physician has a duty to keep that information to him or herself.  The privilege exists both to enable us, as patients, to feel free to share all details with our doctor, no matter how embarrassing or how reluctant we might be to divulge such personal information.  This is because we know it won't go any further than the doctor's office.  The privilege also serves to allow doctors to probe into personal matters and expect honest and forthright answers because the patient knows that whatever is said in the doctor's office stays in the doctor's office.

New York's highest Court, the Court of Appeals, has determined that when someone brings a lawsuit, they no longer have the same expectation of privacy and privilege as does anyone else.  To be sure, a plaintiff in a lawsuit has always had to provide all medical records related to the injury (and the parts of the body that have been injured).  But in 2007, the Court of Appeals went further.  In Arons v. Jutkowitz, 9 N.Y.3d 393, 850 N.Y.S.2d 345 (2007), the Court held that a plaintiff in a personal injury lawsuit has to give permission to the defendant to speak to his own physician.  As a result, a plaintiff in a personal injury lawsuit now has to allow defense attorneys to meet with his or her own physician, and there isn't even a requirement that the plaintiff must be present. Just think about it for a minute: if you were hurt through someone else's fault and bring suit, you have to give the attorney for those that caused you to be injured permission to meet with your doctor, without your even being there to hear what they discuss.
 
In response to this decision, a bill was introduced to reinstate the traditional physician-patient privilege for those who have been hurt and seek recovery.  "Who could be opposed to such a bill" you might ask.  In this instance the answer is surprising.  A group that purports to represent health care providers has opposed the bill.  It seems that because sometimes health care providers are sued, at least one group supposedly representing such providers has determined that potentially protecting their own interests outweighs the important principles that led to the widespread application of the physician-patient privilege in the first place.

That group, the Greater New York Hospital Association recently took out a full page advertisement in the New York Times taking aim at the bill that would reinstate the privilege. Brian Conway, a spokesman for the group said : "This egregious bill is nothing more than a gift to trial lawyers that will send already outrageously high medical malpractice premiums for hospitals and doctors through the roof."  In response, the bill's sponsor, Assemblyman Rory Lancman, said "Nonsense. It's a protection of patient's rights. When you go to your doctor, you have an expectation that your communications with your doctor are going to be private and confidential."  Assemblyman Lancman then added "What they can't do is meet with your doctor, privately, outside the scope of the rules and procedures that are currently in place to make sure that their conversations are limited to the injury in question." This bill would limit attempts by health care providers who undermine the doctor patient relationship while also protecting the confidentiality of patients.

Not only is this bill important to our clients and society as a whole, but we think it would actually serve to ease some of the pressure and stress on doctors who may be involved in litigation cases.  We think this bill is an important one and it is a shame that some of those who would benefit from it don't even realize it.