Christopher Jensen 711 Whipple Street
Sean Phelan Prescott, AZ 86301-1717 TEL: (928) 778-2660
Of Counsel: Hans Clugston
[email protected] FAX: (928) 778-1379
April 17, 2007
Justices of the Supreme Court of Arizona
State of Arizona
1501 West Washington
Phoenix, AZ 85007
Re: Comment to Proposed Amendment to Rule 75(a), Arizona Rules of Civil
Procedure (Opposition by the Arizona Trial Lawyers Association)
Dear Justices:
I have been a licensed attorney in Arizona since 1973. My practice is limited to representing claimants in personal injury and wrongful death claims and related matters. I am currently the President of the Arizona Trial Lawyers Association (“AzTLA”), which has approximately 650 Arizona licensed lawyers among its members, which members customarily represent injured tort victims.
On behalf of AzTLA, I oppose the proposed amendments to Rule 75(a), Arizona Rules of Civil Procedure, which I understand would customarily require in arbitration cases that personal injury plaintiffs voluntarily waive their rights to privacy and privilege as to their medical records by requiring a mandatory HIPAA-compliant medical authorization to be signed by plaintiff that could be used to reveal all of plaintiff’s medical records. The existing Arizona law relating to the physician/patient privilege, as discussed by this Court in Bain v. Superior Court, 148 Ariz. 331 at 334, 712 P.2d 824 at 8227 (1996), is that a personal injury plaintiff impliedly waives the physician/patient privilege only to the extent that plaintiff “places a particular medical condition at issue by means of a claim or affirmative defense.” This existing rule is fair and reasonable. It protects the plaintiff’s right to privacy as to medical and psychological conditions, treatment, and history which have nothing to do with the claims or affirmative defenses in litigation relating to personal injuries. AzTLA is against the automatic waiver of these important rights of our clients in future arbitration level tort cases.
I agree with the points raised by Amy Langerman concerning the negative impact that mandatory production of signed HIPAA-compliant medical releases would cause. Such a rule change is contrary to the underlying principles of mandatory disclosure, because it assumes one side of the case is not playing fair by making full disclosure without any supporting evidence. It is inherently unjust because it will inevitably result in disclosure of privileged, sensitive and irrelevant medical records which should remain private. No compelling need has been demonstrated to change the rule from mandatory disclosure of medical records to mandatory disclosure of records plus a signed authorization to the adverse party so that defense counsel can check up on the completeness of plaintiff’s disclosures without any evidence of a problem, and is enabled to do a “fishing expedition” for any and all prejudicial information that may be had (unfairly providing all sorts of prejudicial material which is often impossible to keep out of the trial evidence as a practical matter).
As you may suspect, it is common practice for defense counsel to uniformly seek waivers of HIPAA and the physician/patient privilege in order to obtain ALL the plaintiff’s medical records, as far back as is practical, in order to obtain as much information as possible regardless of privilege, the right to privacy, etc. The result of the proposed “automatic waiver” arbitration rule would be that in most cases, an innocent tort victim’s entire medical history for the last five, ten or more years can and will be learned by a defendant whose only “right” to that information is that said defendant (and his/her counsel) is involved in defending a claim caused by said defendant’s [alleged] negligent and/or intentional misconduct. That should not normally be the only basis by which defendant becomes entitled to obtain irrelevant personal, private, and currently privileged information relating to, for example, sexually transmitted diseases, an embarrassing physical condition or deformity in a different area of the body than (and unrelated to) the area of the claimed injury, an unrelated crime that should be privileged under the 5th Amendment, marital infidelity, drug use, unusual social, religious or political beliefs, etc.
We understand that the proposed changes to Rule 75(a) would “streamline” discovery in arbitration proceedings and thereby serve the otherwise apparently legitimate economic interests of tort defendants (and with that, the insurance defense industry) and would also promote judicial economy. AzTLA understands the strong financial interests of tort defendants (and the insurance defense industry that defends and indemnifies them) in wanting to simplify and automate the defense of arbitration-level personal injury claims by obtaining broader medical records discovery with less work. Those interests do not justify the loss of individual privilege and privacy rights.
We all understand that, by taking away the personal injury claimant’s physician/patient privilege and HIPAA right to privacy, plus other potential privileges (e.g., spousal privilege may be implicated in medical records, the privilege against self-incrimination, etc.), many meritorious claims will never be asserted due to the foreseeable embarrassment, humiliation, and emotional pain it would cause. AzTLA asks: “Do the elements of greater economy, efficiency, and expediency outweigh the fundamental privilege and privacy rights of Arizona citizens, in the context of the civil justice system?” The answer in connection with the proposed change to Rule 75(a) should be: “No, at least not normally or automatically.” It is simply wrong to force personal injury claimants to automatically, without any evidence of circumstances that justify it, give up so much of their recognized rights under current law to the physician/patient privilege, other privileges, and federal HIPAA privacy safeguards in order to be permitted to assert any arbitration-level personal injury claim.
I feel confident that the Justices of the Supreme Court of Arizona, having established a long and respected body of law in connection with the physician/patient privilege, etc., as evidenced by such cases as Bain v. Superior Court, supra, will not override this proud history of individual rights and civil justice for the sake of convenience, expedience, simplification, and insurer profits at the expense of protecting the valid traditional rights and privileges of Arizona individuals and families. There is simply no sufficient justification for such an overreaching, overbroad, significant, and harmful change in the law of privacy and privilege as proposed by the pending change to Rule 75(a).
On behalf of the Arizona Trial Lawyers Association, representing Arizona consumers and families in the quest for civil justice in every type of civil dispute that comes to Court, we request that no HIPAA-compliant medical authorizations be automatically required of personal injury arbitration claimants. The civil justice system relating to tort claims is not broken. Rule 26.1 voluntary disclosureworks very well in nearly all cases. When there is a legitimate concern about failure of disclosure, the defense can employ the A.R.S. § 12-2294.01 subpoena procedure (which permits medical provider’s potential objections to subpoenas lacking authorizations, and “in camera” inspections of evidence by the trial-level Court to determine the appropriateness of privilege claims).
Disclosures of plaintiff’s medical records should produce all the relevant records, and should clearly identify what are usually very limited claims to protect privilege in short portions of a small number of pages of the often voluminous records, all of which are normally disclosed, with the brief passages that are “blacked out” to be identified by a “privilege log” served on the defense counsel pursuant to Rule 26.1(f), Ariz. R. Civ. P. (making the potential “in camera” inspection by the trial level Judge quick and easy), is a good, effective, and reasonable system.
These existing procedures allow for the possibility of protecting privacy and/or privilege. To throw out this carefully reasoned and well-balanced system for producing personal and private medical records information in litigation while still maintaining the right to claim privilege would be like “throwing out the baby with the bathwater.” It is simply a bad idea which would cause unnecessary emotional hardship to the public and would incidentally and unfairly tip the scales of justice in favor of the tortfeasor and the defense.
The Health Insurance Portability and Accountability Act, Pub.L. No. 104 – 191 (1996) (“HIPAA”), is a federal law which should not be tampered with at the state level because it will produce much unnecessary litigation, spilling Arizona Superior Court disputes into the appellate and/or federal system, etc. The problems with the proposed changes to Rule 75(a) simply have not been fully considered by its proponents, who should see that the federal right to privacy guaranteed under HIPAA cannot properly be overridden by way of a change in the Arizona Rules of Civil Procedure, and the proposed mandatory waiver of HIPAA rights as a condition of asserting an arbitration level tort claim in Arizona will be controversial at best.
That the proposed automatic HIPAA-compliant waiver of privacy and privilege rights could foreseeably do significant harm is illustrated by the language in Duquette v. Superior Court, 161 Ariz. 269 at 275-277, 778 P.2d 634 at 631-633 (App. 1989), describing the mischief that may ensue when defense counsel are permitted ex parte contact with plaintiff’s treating physicians. Duquette states that the “overriding public policy considerations [which] justify a prohibition on ex parte communications between a plaintiff’s treating physician and defense attorneys” include:
1. The physician-patient privilege is a confidential one involving a public expectation of privacy and confidentiality.
2. The fiduciary relationship between the physician and patient requires the physician to exercise “the utmost good faith” [citation omitted]. Discussion of the patient’s confidences other than in compliance with court-authorized discovery would be inconsistent with this fiduciary relationship [citations omitted].
3. “Ex parte communications between defense attorneys and plaintiffs’ treating physicians would be destructive to both the confidential and fiduciary natures of the physician-patient relationship that have been recognized by statutory and case law.”
4. The pressure brought to bear on the physician when he or she is faced with a request for an ex parte interview by a defense attorney is another consideration. “[T]he physician might feel compelled to participate in the ex parte interview because the insurer [for defendant] may also insure the physician witness.”
5. “A physician [who] allows [an ex parte interview] embarks, perhaps unknowingly, on a course which may involve a breach of professional ethics and potential liability.”
Duquette concludes the analysis on these issues by stating that “we believe that resolution of any dispute over the scope of the [implied] waiver of the physician-patient privilege should be made in an adversarial as opposed to an ex parte setting.” 161 Ariz. at 177.
The proposed automatic waiver of HIPAA rights and the physician-patient privilege will result in many negative consequences, as Duquette indicates, not all of which are fully foreseeable, but all of which AzTLA opposes for our clients. In addition, the treating physicians should not be put into the confusing and conflicting position that will predictably result from potential (and likely) ex parte contact.
In conclusion, AzTLA agrees with the goal of arbitration procedural changes designed to shorten, simplify, and economize arbitration for all concerned. However, our Arizona consumer and family clients should not be required to pay such a high “tariff” for the right to claim tort damages by being forced to automatically waive other important rights.
AzTLA suggests that this Court appoint a joint committee of pro-plaintiff and pro-defense personal injury lawyers to continue to work on Rule 75 amendments toward the goal that Rule 75 can shorten, simplify, and economize arbitration for everyone without automatic loss of plaintiffs’ valuable civil rights. AzTLA would actively support such a balanced approach in developing improvements to the arbitration process, but with an alternative to the proposed automatic waiver of physician-patient, HIPAA and other privilege rights that is proposed, which is claimed to be a one-sided and inherently unfair proposal. We understand that our [personal injury plaintiff] future clients, the defense bar (and their liability insurer clients) and the Courts would all benefit from potential arbitration procedural changes as well, including some that are presently under consideration. For this reason, the process of changing the arbitration procedure should be a joint effort.
AzTLA points out that an arbitration rule change process in which AzTLA (the largest organized group of Arizona lawyers regularly representing personal injury plaintiffs) was not invited or allowed to participate, and the result of which is a proposed rule that favors defendants’ discovery goals while taking away existing plaintiffs’ privilege and privacy rights, raises questions about the underlying fairness of the process used to develop these proposals. We offer volunteers from among the best of our 650 members if you choose to appoint any of them to work on such a potential future balanced arbitration rule change proposal, working along with appropriate members of the tort/insurance defense bar and/or the judiciary as selected by this Court. Working together, we are confident that we can offer a better solution than the pending Rule 75(a) proposal which requires an unjust automatic waiver of rights as a condition of making an arbitration-level injury claim.
Yours truly,
JENSEN LAW FIRM, P.C.
Christopher Jensen
CJ/gl
Cc AzTLA Members