Discovery Ordered of Both Sides to Medical Providers' Recovery Suit

NO-FAULT – FRAUD COUNTERCLAIM – DISCOVERY
Carnegie Hill Orthopedic Services v. GEICO Ins. Co.
(Sup. Ct., New York Co., decided 5/19/2008)

Motion and cross motion by parties to compel discovery on their demands, and for protective relief from the other's demands.

GEICO sought:

1. "all non-privileged non-confidential documents in plaintiffs' possession" regarding two proceedings by the Department of Health State Board for Professional Medical Conduct ("BPMC") against Dr. Allen C. Chamberlin, ultimately leading to the revocation of his license to practice medicine. Matter of Chamberlin v. New York State Board for Professional Med. Conduct, 34 AD3d 1097 (3d Dept. 2006)
2. copies of evidence received and transcripts of the testimony of named physician witnesses
3. an authorization to obtain copies of all non-privileged, non-confidential documents maintained by the attorneys who represented Dr. Chamberlin in those BPMC proceedings
4. the names, addresses and salary or other payment records of all employees and independent contractors working for the plaintiffs

Plaintiffs sought protective relief only with respect to the BPMC records. New York County Supreme Court Justice Daniel Palmieri denied that relief and ordered disclosure of all non-privileged, non-confidential BPMC records.

Plaintiffs sought:

1. copies of "all non-privileged non-confidential" documents contained in the no-fault files maintained by GEICO with respect to the claims assignors identified in the pleadings, including claims logs, medical treatment claims records, and documents related to claims handling;
2. copies of "all non-privileged non-confidential" records of intra-company communications regarding the subject claims, or with "any other entity or individual" concerning the same;
3. with regard to any personal injury claim brought by any of the assignors whose no-fault
   claims are the subject of the present litigation, "all non-privileged non-confidential" documents that may be found in a claim fie maintained by the defendant or any affiliated
   entity as insurer of a party against whom the personal injury claim was made. By way of a
   reply affirmation of counsel, this last demand was narrowed to (a) jury verdict or evidence of settlement; (b) deposition transcripts of any assignor; (c) bills of particulars relating to any assignor claim; and (d) medical reports and records relating to an assignor claims.

The court denied GEICO's motion in large part and ordered disclosure of all but certain privileged records in GEICO's fies that came into its possession from a source other than plaintiffs and Dr. Chamberlin. With respect to GEICO's objection that plaintiffs had not presented signed HIPAA-compliant authorizations for all assignors, Justice Palmieri ruled:

Nor does HIPAA trump the CPLR provision discussed here as a matter of Federal preemption, inasmuch as preemption is limited to those situations where state law prohibits or restricts a disclosure that the HIPAA privacy rules actually mandate.(citation omitted). Accordingly, no authorization by the assignors, HIPAA compliant or otherwise, will be required.

Justice Palmieri also ordered both parties to "bear the reasonable cost of necessary photocopying and binding" of the documents they had demanded and to not disseminate any documents beyond the parties to this litigation.