NEW DECISION

Carnegie Hill Orthopedic Services v GEICO Insurance Company, 2008 NY Slip Op 31481(U)(Nass. Sup. Ct.)

The Court agrees with defendant that a document request canot be used to determine if documents exist, as this can result in the classic and disfavored " fishing expedition. Penn Palace Operating, Inc. Two Penn Plaza Assocs. 215 AD2d 230 (I st Dept. 1995). Here however, there can be little doubt that there are documents relating to the assignors ' claims in defendant's no-fault fies, and intra communications between and among its employees regarding those claims. The only category that might give one pause is the request regarding lawsuits, as there is nothing to indicate that any such lawsuits were brought. However , it is doubtful that anyone of defendant's employees would be privy to that information. Moreover, as each and every claim was the result of an automobile accident , it is not unreasonable to presume that at least some of these accidents led to law suits. Under these circumstances, the request appears to be a legitimate method of obtaining such information. "

It is true that medical records of the assignors that came into defendant' s possession as a result of an application for insurance benefits - the case here - retain their privileged character, in that there is no waiver of the physician-patient privilege by dint of such application. CPLR 4504(a). Although the statute is in derogation of the common law , the privilege is to be given a 'broad and liberal constrction to car out its policy'." Matter of Grand Jury Investigation in N Y County, 98 NY2d 525 (2002), quoting Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130 (1983). Records that were received by GEICO from the plaintiffs or Dr. Chamberlin for the purposes of insurance claims processing clearly fall within this category, but just as clearly wil not be seen in this litigation by any part other than those an assignor would reasonably understand would have access to them in the first instance. The Court thus finds that the purposes of CPLR 4504(a) wil not be offended by permitting the disclosure sought. Cf., Matter of Grand Jury Investigation in N Y County, supra.

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 HIP AA privacy rules actually mandate. Arons v. Jutkowitz 9 NY2d 393, 414-415 (2007). Accordingly, no authorization by the assignors, HIPAA- compliant or otherwise, wil be required.