Case Results
Gordon & Silber Protects Doctors' Personal Medical Records in Important Test of HIPPA Protection in Medical Malpractice Sexual Assault Case — May 2007.
Type of Case: Medical Malpractice. Plaintiff sought assured physicians' personal medical records in a claim that she was sexually assaulted during a colonoscopy procedure and infected with a sexually transmitted disease.
Venue: Supreme Court, Kings County.
Background Facts: Plaintiff accused assured anesthesiologist and gastroenterologist of sexual assault and infection with a sexually transmitted disease, while she was under anesthesia during a colonoscopy
procedure. During the course of the litigation, plaintiff's counsel moved to compel the assured physicians to release their private medical records to determine if they were ever treated for the sexually
transmitted disease at issue. Gordon & Silber opposed plaintiff's motion and cross-moved for a protective order, arguing that the defendant physicians' records were privileged and that plaintiff had
not established their relevancy.
Special Problems: We had to overcome plaintiff counsel's seemingly reasonable suggestion to the Court that it conduct an in camera inspection of the records.
Our Strategy: We argued the physicians' personal medical records were privileged, and the privilege had not been waived by either defendant. We argued that the federal HIPPA protections for private medical records prevented even the Court from reviewing the records as part of an in
camera inspection. Unless waived, the only way the privilege could be successfully challenged would be by a showing that the assureds had asserted their health as an affirmative defense. In other words, if the assureds intended to affirmatively argue at trial that they had no
history of STDs, their records would need to be turned over to
plaintiff's counsel. However, in the instant matter, neither
defendant had asserted their health as an affirmative defense. A simple
denial of the allegations, did not affirmatively inject their past
medical history into the case.
We also argued that the plaintiff's request was an improper fishing
expedition in light of the fact that her own history was positive for
several sexually transmitted diseases, as evidenced by her own medical
records and deposition testimony.
Result: The Supreme Court granted Gordon & Silber's motion for a
protective order over the records in question.
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