Draft Memorandum

RE: TICL Section proposal to amend CPLR 2303(a) and Public Health Law Section 18.

The CPLR Committee generally supports these proposals as remedial in order to prevent undue costs to "adverse parties." The Committee believes that the cost limitations for the reproduction of medical records (as governed by the Public Health Law) were intended to be applied to all parties and that the omission of specific language has apparently placed an unnecessary burden upon such "adverse parties" and upon the courts who have been compelled to needlessly adjudicate this issue.

Nevertheless, the Committee notes specific problems with the statutory language. First, the amendment to CPLR 2306 omits referenced to the Public Health Law, which governs the fees for reproduction of medical records. Therefore, the Committee recommends that the amendment to CPLR 2306(c) state: "No fee, other than those authorized by Section 2303(a) of the Civil Practice Law and Rules AND SECTION 18 OF THE PUBLIC HEALTH LAW may be exacted or levied for the production of records relating to the condition or treatment of a patient." [Matter in capitals is added language suggested by our Committee]. The reason for this is that CPLR 2303(a) only refers to witness fee and travel expenses and does not include the cost of copying the records.

In addition, while expanding to "adverse parties" the right to acquire patient information, the draftsmen have apparently inadvertently deleted from the proposal the present right of the patient's own attorney to obtain these records. Deleted from the revision to Section 18 Subdivision 1(g) are the words which are at the end of the current statute: "or an attorney representing or acting on behalf of the subject or the subject's estate." This should be corrected by restoring the original statutory language according the patient's attorney the right to this information.

In the same subdivision, the proposal also restores language omitted by the amendment effective April 28, 1999, by adding back the language "committee for an incompetent appointed pursuant to article seventy-eight of the mental hygiene law." There appears to be no explanation for this in the supporting memorandum and we are left to surmise that the inclusion of the old language is intended to remedy an inadvertent omission in last year's amendment.

Lastly, the addition of Section 18, Subdivision 1(k), and specifically the use of the words "any written request such as a duly acknowledged authorization signed by the subject permitting release of medical records . . . ." may be interpreted to mean that a duly acknowledged authorization is only one form of such written request and that a request not authorized by the subject may also be permissible. We think that only a written request authorized by the "subject" and subpoenas served on behalf of qualified persons (not just adverse parties) is more appropriate. Thus Section 18, Subdivision 1(k) should read: "'WRITTEN REQUEST OF ANY QUALIFIED PERSON' MEANS A WRITTEN AUTHORIZATION SIGNED AND ACKNOWLEDGED BY THE SUBJECT PERMITTING THE RELEASE OF MEDICAL RECORDS OR SUBPOENA DUCES TECUM SERVED BY OR ON BEHALF OF A QUALIFIED PERSON."

The Committee recommends that these changes be made in order to effectuate the intended statutory amendments.

STEVEN M. CRITELLI, Chair, CPLR Committee