Senior Partner John J. Barbera Gives CLE Lecture at New York State Judicial Institute

by | Apr 11, 2013 | Uncategorized | 0 comments

On April 11, 2013, John J. Barbera, a Senior Partner at Martin Clearwater & Bell LLP, gave a presentation at the NYS Judicial Institute via webinar to New York State’s Supreme Court Judges and their clerks as part of the Judiciary’s Continuing Legal Education program. Mr. Barbera discussed the implications of the Federal HIPAA Privacy Rule for protected health information, and the multi-regulatory framework in New York State in the setting of third party subpoena’s seeking disclosure of medical records of non-consenting patients. The lecture illustrated the complex statutory framework applicable under Federal and State Law by reviewing two cases emanating from New York Family Court and the New York Supreme Court. One of the cases discussed concerned a recent Court of Appeals decision which created a limited “implied” exception to CPLR 4505, the statutory “Physician – Patient Privilege” in New York. Under New York Common law no such privilege existed.

In the Matter of New York City HHC v. New York State Commission of Correction, 19 NY3d 241 (2012), the New York State Court of Appeals reversed lower court rulings in a case involving a quashed subpoena for the medical records of a deceased inmate. Despite there being no express statutory exception to allow for such disclosure absent an authorization from the patient’s estate, the Court held that the broad scope of investigatory powers provided by the legislature to the NYS Commissioner of Correction implicitly allowed for the right to obtain such records as part of its obligation to investigate inmate deaths. The case provided a backdrop to the rich regulatory framework in New York which provides significant protections and safeguards to prevent the unauthorized disclosure of protected heath information. Mr. Barbera’s discussion highlighted and contrasted the legitimate needs of those entities seeking the protected health information with those of the health care entities seeking compliance with the relevant laws that authorize disclosure of protected heath information in certain circumstances.