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Last Post 29 Jun 2007 06:14 PM by  PScott
R-06-0021 Rules of Civil Procedure, Rules 72 - 76 Compulsory Arbitration
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PScott
Posts:

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26 Oct 2006 01:18 PM
    R-06-0021

    PETITION TO AMEND THE RULES OF CIVIL PROCEDURE, SECTION IX. COMPULSORY ARBITRATION RULES 72-76

    TO REORGANIZE RULES, IMPROVE EFFCIENCY IN CASE MANAGEMENT, ACCELERATE DISCLOSURE IN ARBITRATION AND PROVIDE UNIFORMITY AND CLARITY REGARDING MOTIONS RULED BY ARBITRATOR

    Petitioner:
    Mike Baumstark, Chair
    Committee on Compulsory Arbitration in the Superior Court
    1501 W Washington
    Phoenix, Arizona 85007
    Phone 602.452.3001
    Fax 602.452.3659
    MBaumstark@courts.az.gov

    Filed October 26, 2006

    COMMENT PERIOD CLOSED AS OF MAY 21, 2007.

    ADOPTED as modified, effective January 1, 2008.
    Attachments
    James Farley
    Posts:

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    23 Feb 2007 12:07 PM
    James R. Farley and Associates
    5151 E. Broadway, Suite 1550
    Tucson, AZ 85711
    (520)519-0232, Ext. 451
    james.farley@farmersinsurance.com
    #015721

    I am concerned that the proposed rule changes will not solve the problems that exist with the current system and will actually just expand the problems to more cases. First, by raising the limit to $75,000 there will be a drastic increase in the number of personal injury cases that will be subject to arbitration. Insurance companies are well aware that the awards by arbitrators are usually substantially higher than the awards by the juries. With the larger cases, it is easier to beat an inflated award by 25%, and thus cause more delay by requiring an arbitration on a case that will ultimately be decided by a jury.

    Second, the proposed requirement that the plaintiff disclose medical records within 10 days, will not help speed the process unless the rule is given some teeth. Currently, plaintiffs are required to disclose the records at 40 days and that is rarely enforced because the rule also allows admission of any medical record or bill provided 20 days before the hearing. Without changing that rule the plaintiffs can still drop substantial amounts of records on the defense at the last minute, which results in either a delay in the hearing or in the defense going through with the hearing knowing full well that it will just appeal the decision. Either way it does not speed the process and does not promote fairness.

    Lastly, the proposed change to the rules of evidence will be counter productive and likely result in increased appeals. If one standard for evidence applies at the arbitration and another standard applies at trial, it will be more difficult to determine what evidence should be presented. For example, an unsigned statement of a witness recorded by an insurance company would now be admissible at arbitration and could result in one liability decision, but that same statement would not come into trial (and if the witness could not be found for trial) and the exact opposite liability decision could be made solely because that evidence was not heard. Should an attorney present all the evidence that helps his client and hope that the case doesn't get appealed, when he knows the evidence won't come in at trial or should he not present the evidence and jeopardize his client's case at arbitration. There is a distinction between personal injury cases and family law cases. In the family law case the evidence and the rulings are being made by a single judge and not subject to a de novo review. To apply the same rule makes no sense.

    I have arbitrated hundreds of cases over the last 10 years. During that time I have been a plaintiff's attorney, a defense attorney, and an arbitrator. While the current system is not a perfect model of efficiency and fairness, I do not believe that the proposed changes will solve the problems and will actually just create more.
    lkoschney
    Posts:

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    23 Feb 2007 02:30 PM
    Scott I. Palumbo
    Palumbo Wolfe Sahlman & Palumbo
    2800 North Central Avenue
    Suite 1400
    Phoenix, AZ 85004
    Phone 602-265-5777
    Fax 602-265-7222
    www.palumbowolfe.com
    Attachments
    sjones
    Posts:

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    16 Apr 2007 01:16 PM
    Amy G. Langerman
    (State Bar No. 009174)
    Amy Langerman P.C.
    951 Coronado Avenue
    Coronado, CA 92118


    Re: Public Comment Concerning Proposed Amendments to the Rules for Arbitration - Comment to Proposed Amendment to Rule 75(a).

    Attachments
    ecrowley
    Posts:

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    24 Apr 2007 01:08 PM
    Steven A. Cohen
    Geoffrey M. Trachtenberg
    Levenbaum & Cohen
    362 N. 3rd Ave.
    Phoenix, AZ 85003
    602-271-0183
    Fax: 602-271-4018
    Attachments
    lkoschney
    Posts:

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    25 Apr 2007 09:56 AM
    R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

    Dev K. Sethi
    Kinerk Beal Schmidt Dyer & Sethi, P.C.
    1790 East River Road
    Suite 300
    Tucson, AZ 85718
    Phone: 520-545-1663
    Fax: 520-790-1163
    Attachments
    lkoschney
    Posts:

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    30 Apr 2007 12:30 PM
    Kent Hammond
    Rudolph & Hammond, LLC
    8686 E. San Alberto, Suite 200
    Scottsdale, AZ 85258
    Phone: 480-951-0700
    Fax: 480-951-1185
    Attachments
    lkoschney
    Posts:

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    30 Apr 2007 12:43 PM
    Craig J. Simon
    Cantor Simon PLLC
    2141 E. Broadway Rd
    Suite 120
    Tempe, AZ 85282-1705
    Phone: 480-858-0070
    Fax: 480-858-0073
    Attachments
    Cavecreekflies
    Posts:

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    11 May 2007 08:41 PM
    R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

    Kevin J. Tucker
    TUCKER & MILLER, LLLP
    1440 E. Missouri Avenue
    Suite C-115
    Phoenix, Arizona 85014
    Phone: 602-870-5511
    Fax: 602-870-5255

    As an Arizona Attorney with an active litigation practice I echo the comments of Amy Langerman concerning the mandatory production of Hippa compliant medical releases. Such a rule is contrary to the underlying principles of mandatory disclosure, assumes one side of the case is not playing fair, and has the real potential for disclosure of privileged medical records. No compelling need has been demonstrated to change the rule from mandatory disclosure of records to mandatory disclosure of records and a release to your adversary so that they can check up on your veracity.

    jxeavans@msn.com
    Posts:

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    12 May 2007 04:16 PM
    R-06-00021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

    John Evans
    6619 N Scottsdale Road
    Scottsdale, AZ 85250-4421
    Ph: 480-596-6913
    Fax: 480-596-6913

    I echo the comments of Amy Langerman concerning the mandatory production of Hippa compliant medical releases. Such a rule is contrary to the underlying principles of mandatory disclosure, assumes one side of the case is not playing fair, and has the real potential for disclosure of privileged medical records. No compelling need has been demonstrated to change the rule from mandatory disclosure of records to mandatory disclosure of records and a release to your adversary so that they can check up on your veracity.


    jeffbouma
    Posts:

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    12 May 2007 04:36 PM
    R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

    John Jeffrey Bouma
    1850 E Thunderbird
    Phoenix, AZ 85021
    Ph: 602-340-1000

    As an active trial attorney and member in good standing, someone who over the last 19 years has done both plaintiffs and defense work, I write to express my strong opposition to part of the proposed amendments to Rule 75 (a), concerning arbitration procedure, specifically those provisions that will now mandate that personal injury plaintiffs voluntarily produce a HIPAA compliant medical authorization in addition to their relevant medical records. Such a provision flies in the face of the disclosure provisions imposed upon all parties, separates out one class of plaintiffs for separate treatment, and will result in an increase in motions and court/arbitrator involvement in many cases without a demonstrated need for such procedures. Costs of litigation will increase in a system designed to streamline cases and reduce costs. Finally, there is a real and present danger of the potential for disclosure of privileged information directly to the defense. For all of these reasons, I urge this court to delete the provisions.

    At the current time, all plaintiffs in personal injury cases are required to “disclose”, pursuant to the timelines imposed by court rule, relevant medical records. Uniform interrogatories exist that ask plaintiffs to further disclose the names of all doctors who have treated them in the last 5 years. It is up to the plaintiff to identify those “medical issues in controversy” and to produce evidence to support those issues.

    If there is a dispute over the scope or extent of disclosure under the present rules, a defendant is required to make a good faith effort to resolve the dispute without court intervention. Typically, a defendant will seek ALL records from ALL doctors, regardless of whether they may be relevant. In such cases, the defense attorney will argue that there may be some mention of accident related conditions in unrelated medical records which may require them to be produced.

    A reasonable plaintiff’s attorney would thereafter obtain the requested medical records, review them to see if there are any references to accident related conditions, and produce those sections that do. A privilege log would be produced for all other pages not disclosed. If the defense doesn’t like this procedure, and files a motion (or if the plaintiff refuses to comply with this procedure), the records can and should be produced, either by plaintiff or via subpoena, to the judge for an in camera inspection. The defendant is NEVER in the loop until and unless a judge determines that a claim of privilege is unfounded.

    Defendants are unhappy with this procedure, not because it is unfair or doesn’t work, but because it obstructs defense attorneys from seeing ALL records and making the determination themselves whether the records are relevant. Defense attorneys want to see the records themselves and want to get them directly from the doctor via subpoena because, in truth, they are suspicious of plaintiffs’ lawyers, and suspect that they are intentionally not disclosing harmful evidence.

    Of course, defense attorneys don’t argue that they are suspicious of plaintiffs’ lawyers. Such an argument would likely NOT be successful as the rules work on a system where the burden of production is on the party in control of the evidence and there are serious sanctions if the party intentionally fails to disclose relevant but harmful evidence. There is no provision in the rule to allow the opponent “self help” to obtain potentially privileged records on their own in order to “check up” on their adversary as a matter of routine.

    Thus, defense attorneys have come up with alternate arguments to justify their asserted need to obtain the documents directly from the doctor. They argue that the plaintiffs’ attorney may not have gotten all the records because doctors may produce fewer records in response to a letter request than they might produce in response to a subpoena. While providing no data to support such arguments, defense lawyers prooffer it as a justification for their need to subpoena the documents. Of course, the rules do not require any party to obtain documents via subpoenas. If there was a belief that custodians of records will produce more with a subpoena than a private request, then it should apply to all records, not just medical records. The added expense to litigation, of course, can not be underscored. We require both sides to investigate before filing a complaint/answer. A plaintiff has no power to subpoena before a suit is filed. So, plaintiffs request records from various sources, and pay significant sums of money to obtain them. Under the “we need to subpoena to check the completeness of all pre-suit requests for documents” arguments raised herein, the court will now be adding additional costs to every litigation – the cost to issue and serve a subpoena, the cost for a court reporter, if the custodian appears, and the additional cost of duplicating records which have already been produced.

    Of course, if there really was a need to subpoena records to ensure the veracity of one party’s disclosure, why then do they need to be produced to the defense? Plaintiffs’ lawyers in personal injury litigation have been fighting this (successfully) for years. They have creatively proposed, as alternatives to the defense procedure, production of the records directly to the court for in camera inspection, to a master, or to a court reporter for labeling, numbering and comparison. These procedures are uniformly rejected because the defense lawyer wants to look. They are desperate to look, hoping to find the one “jewel” of dirt that is not relevant, but is damaging. Examples of this abound. Indeed, I will posit the following examples from personal experience in the last 25 years:

    - Personal injury plaintiff involved in a motor vehicle accident and sustained soft tissue injuries to her neck. No other injuries claimed. All relevant medical records were produced to the insurer pre-suit in an effort to settle the case. Upon receipt of the complaint, after negotiations failed, defense counsel had his insurance company run plaintiffs’ name through the insurance data bank to find out if any claims had ever been filed. Defense attorney learned that plaintiff had been raped and had been seen in an emergency room for a rape examination years earlier. He subpoened the records without any effort to discuss with plaintiffs’ counsel the relevance of them. He was hoping the provider would produce the records by mistake, without a consent. An immediate motion was filed. Defense counsel objected to any procedure that had a “middle man” screen the records before he did as he had a RIGHT to see for himself whether there was any alternate explanation for any emotional suffering caused by the car wreck. Court ultimately screens records and holds that NONE of them are relevant, that plaintiffs appropriately refused to produce them, and that the mere filing of a lawsuit did not allow defense attorneys and their insurers to wholesale invasion into the lives of the injured, even their medical and emotional lives.

    - Employment discrimination plaintiff files claim. Defense sends interrogatories and learns that she has seen a marriage counselor years earlier in her first year of marriage. Plaintiff’s counsel obtains the records and produces a privilege log and offers to file the undisclosed records, in camera, if defense counsel wanted to argue that they were relevant. Defense counsel files motion and claims that there is an absolute right for the defense to obtain the records without any middle man, including the court, because the court is not uniquely suited to know what actually might be relevant in this case. The court ultimately screens the records, upholds the procedure suggested by plaintiff, and finds that NONE of the records have ANYTHING to do with the claimed damages in the lawsuit.


    - Personal injury plaintiff involved in a motor vehicle accident and sustained fractured clavicle. Plaintiff produces all medical records. Interrogatories are propounded and no additional medical providers are listed. Defense asked for signed consents to subpoena records to “insure” that all records were actually produced to plaintiffs counsel from doctor. Defense counsel refuses any alternative offer to have a court reporter or the judge review records for completeness. Defense counsel has no evidence that the records are incomplete but wants to check, “just to make sure” because he asserts that in other cases doctors have not produced all the records to plaintiffs counsel pre-suit.

    These are just a few examples. The point of the above is to establish that what the defense claims is the problem is NOT the problem. The defense assumes that the plaintiff isn’t forthcoming and has created a palpably benign reason to check for themselves. This has never been the law. Plaintiffs are required to comply with the law and produce all relevant medical records. It is initially for the plaintiff to determine relevance. If there is a dispute, the next person who should be involved in the judge – not the defense attorney looking at the records to see if the plaintiff is being fair.

    If the defense was correct, then where is the similar rule for plaintiffs? The defense has an obligation to produce relevant records as well. Let’s assume it isn’t an automobile case but an employment case that is being arbitrated. The plaintiff is the employee and the defendant is the employer. The defendant has control over the employment records. What procedures are in place for a plaintiff to obtain “self help” to check the veracity of the defendants’ disclosures? There are NONE. If a plaintiff thinks that a defendant has not been forthcoming, a motion is filed and again, the next person in the chain to decide is the judge. The defense files the documents and the judge looks at them. Plaintiff can’t look at them and decide if the defense attorney “got it right.” We have to rely on the court.

    Moreover, there is a potential, when medical records are involved, of an inadvertent disclosure of privileged information directly to the defense. Defendants counter this concern by arguing that the privilege has been waived upon the filing of a lawsuit so any records obtained would not be privileged. This rebuttal fails to consider both the law of privilege and the rules designed to provide for the discovery/disclosure of discoverable information.

    Simply because the privilege may be waived as to some (but likely not all) medical records, has nothing to do with the procedures that the rules provide for discovery/disclosure. With respect to medical records, the plaintiff is obligated to disclose all relevant medical records. This rule was created years ago to expedite litigation and reduce costs. Plaintiffs had to immediately produce the records with the first disclosure and there was no additional cost of a custodial deposition. Thus, the rules provided for a precise method to expeditiously and economically process claims. This new proposed rule adds yet another hurdle. In addition to the otherwise existing mandatory disclosure provisions, now we add yet another cost, the cost for the defense to recreate the discovery that has already been disclosed. These become taxable costs and if a plaintiff does not succeed or does not “beat” an offer of judgment, the plaintiff is now doubly penalized (potentially triply penalized if it is an offer of judgment situation). They paid for the records up front at huge expense to comply with rule 11, and now get to pay one or two more times for the defense to check on whether they did a good job in their original production. Nowhere do you see any argument that these costs should be born exclusively by the defense and not permitted as taxable costs, even though they are duplicating what has already been done. And, if they want the HIPAA release NOT to issue a subpoena but simply to obtain the records via request, in an effort to reduce taxable costs, why are we requiring it? The records have already been obtained via request and produced. The prooffered explanation for needing the HIPAA release was because a subpoena was more effective than a release and might produce something more.

    More importantly, the obligation to screen for privilege rests exclusively and always on the plaintiffs’ attorneys. If plaintiffs’ counsel has obtained the records, for example, and has seen, buried in one note for chiropractic treatment, that plaintiff has previously been treated for a sexually transmitted disease, a plaintiffs’ attorney should redact that out, should mark that the documents have been redacted in a privilege log, and should volunteer to file the document in camera for the court to determine if it needs to be produced. The defense HATES this procedure because they KNOW some dirt has been redacted and they are desperate to see it, regardless of its relevance and discoverability because it is dirt and they can use dirt to embarrass and humiliate the plaintiff. They want the power to issue a subpoena with their HIPAA release, now mandated, in order to get the dirt.

    Yes, there is an exception to the proposed rule. A plaintiff can refuse to provide the release if the records are not discoverable. But, in the example above, the records are discoverable. They are clearly relevant and were disclosed because of their relevance. A medical doctor is NOT going to protect privilege the way a plaintiff’s attorney does. This same example applies to the plaintiff who has a long time family doctor who she sees for colds, flues, and pap smears. She then gets in a car wreck and sees the doctor once and is referred to a physical therapist. Plaintiffs’ counsel obtains the records, produces the one relevant page and a privilege log for the rest. Under this proposed rule, a HIPAA release would be mandated and the defense obtains privileged records.

    Well, the defense will argue, the court can fashion relief to protect these situations. My point is that this has always been true. If there is an issue about the disclosure of any information, go to the court. But don’t create rules that give one side the power to check on the veracity of another’s disclosure when there is no basis to believe that there has not been adequate disclosure.

    When I have faced this issue before, I have argued (and every time I have been successful) that if there was some basis to believe that the records were incomplete, all the defense needed to do was tell me. I would go and check. But that is NEVER the case. On their face, the records appear complete because they are exactly what the doctor sent me. Now, could a doctor have missed a page? Sure. A copy machine may have done so inadvertently. But, to give wholesale license to the defense bar to “double check”, just in case there was a copying mistake, is contrary to the way the rules have always worked. If there is a note that stops in mid sentence and the next page starts with something else, it will be obvious. The defense attorney can call, tell me about it, and I can call the doctor and figure it out. Isn’t that how we want the rules to work? Do we really want to create rules whose sole purpose is to engender disbelief about our adversary and risk the possibility of inadvertent disclosure of something privileged? And, do we really want to create rules that permit such suspicion but only allow ONE side in the litigation to check?

    I will posit one last hypothetical. Assume the family doctor situation. He has treated the patient for years. He keeps notes of office visits on one page for each visit. He has 20 pages of pre-accident notes, representing 20 office visits. He has one office note for the car wreck. He gets the request for records from the plaintiff, for a “complete copy of your chart, cover to cover”. He looks over the notes and he sees one note, from years earlier, where he treated the patient for a sexually transmitted disease. It was before the patient was married. He knows it isn’t relevant and is very embarrassing so HE makes the decision not to produce it. Plaintiff has long ago forgotten about this and plaintiffs’ counsel has no idea that the record exists and has been intentionally excluded by a well intentioned doctor who actually was protecting the privacy of his patient. Plaintiff’s counsel produces the records in the initial disclosure and now has to produce a HIPAA release to allow her adversary to get the same records. With the subpoena, the doctor does exactly what the defense claims – sends more records than he sent before and sends the embarrassing and irrelevant and very prejudicial lab results showing the sexually transmitted disease. For the rest of the case, no matter what she does, the plaintiff will know that her adversary knows her secret, regardless of how irrelevant it might be.

    Why do we need a procedure that allows this, even if there are limited examples where a doctor may not have produced 100% of the records, either by mistake or design? If the defense suspects an omission, the appropriate way to resolve it is to pick up the phone and let the plaintiffs’ counsel go and look. If an omitted document is discovered, it can be promptly produced or filed under seal for an in camera inspection. But there is no basis to simply dispense with rules that are working and allow defense attorneys carte blanche to duplicate discovery on the chance that something might be out there.

    The rules of disclosure work on the honor system. All lawyers are sworn to be honest and to promptly and completely disclose all relevant documents. Yes there are those who abuse on both sides and the rules provide for serious sanctions if that happens. But the rules should not allow a procedure that allows one side to duplicate what the other side is already required to do either to check on the veracity of the opponent or to make sure that the disclosure really was complete. It is unnecessary, inefficient, costly, and potentially prejudicial.

    Finally, there is the suggestion that this procedure will expedite the process by “front end loading” the disclosure of relevant documents. This presupposes that the defense EVER had a right to a release. It is one thing to require early and prompt disclosure of relevant documents as a matter of course, instead of only if requested, as we previously experienced years ago. It is another thing to add a new procedure, for which there never was a right, and then claim that this will expedite matters. While defense attorneys often asked for a release or try to issue subpoenas without them, in violation of federal confidentiality provisions, there was no duty for a plaintiff to produce a release nor any right of the defense to subpoena them. The duty was on the plaintiff to produce the medical records that are relevant. Respectfully, the “we want to make the system more efficient and the process more expeditious” is simply pretext for the underlying truth: the defense wants to see the records before the plaintiff or the court can pre-screen them for privilege.

    There is no evidence that the system is broken. The defense is unhappy because judges in personal injury cases have routinely refused these requests in large part because the rules do not mandate the production of a release; the rules mandate the production of records. So, they want to change the rules. Insofar as there was already a committee to look at arbitration cases, and there is a need to change some of those procedures, this was included in their amendment, buried in the middle.

    Finally, I want to state that I personally view the seperate arbitration proceedure to be a failure and do not take cases which are likely to end up in this system. It is inherently biased in favor of the wealthier parties and creats a 2 tier system of justice in which parties are put through a process in front of attorneys who often have little or no experience with pre-trial and trial proceedure. Many defendants use the system as a delaying tactic and do not participate in it in good faith. Any system in which I have to worry about being penalized for doing too well in the Arbitration, only to have to re-litigate the case for real in another forum, with significant financial penalties hanging over my clients head is, by definition, a bad system. The whole thing should be abolished, not expanded and defendants should not be allowed to use court supervised/mandated arbitration rules to gain an advantage that they do not have in either state or federal courts. This amaendmendment should not be adopted.
    kk@risnerandgraham.com
    Posts:

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    12 May 2007 05:13 PM
    R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

    Kenneth K. Graham
    Risner & Graham
    100 N Stone
    Suite 901
    Tucson, AZ 85701-1526
    Ph: 520-622-7494
    Fax: 520-624-5583

    I would like to join those who are opposed to the rule change relating to plaintiffs being required to provide HIPPA releases. This rule change appears to assume that the rules already require a plaintiff, in a non-medical malpractice personal injury action, to provide HIPPA releases to the defendant. In fact, what appears to be a procedural change effecting when a release would be required to be provide, infact, would result in a substantive change that would require plaintiffs who are subject to arbitration to provide releases where no other plaintiff, except in medical malpractice actions are required to do so. Others have set forth the legal authorities establishing that such a requirement would work a violation of the plaintiff's privacy and doctor/patient priviledge. many plaintiffs are seen by the their primary care physician for their injuries. Most of those records have nothing to do with there personal injury action or the injuries they are claiming were caused by the defendant's negligence. Even specialists may have materials in their file which are priviledged. The rules provision that no authorization need be provided if good cause is shown would require virtually every plaintiff's attorney to file an objection every time since without reviewing what is being provided by the health care provider prior to it being distributed to defense counsel, the attorney has no way of knowing whether there is priviledge materials contained therein. It has been documented that defense counsel have abused the use of releases whether intentional or inadvertantly. there is simply no reason that the plaintiff should ever be required to provide a release absent a specific showing of cause to believe that the plaintiff has not provided records as required by Rule 26.1.

    In addition, requiring plaintiffs to provide there disclosure 10 days after service is not only unnecessary but unworkable. A plaintiff will not know where to serve this disclosure until an Answer is filed which almost always is more than 10 days after service.
    rplattner
    Posts:

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    13 May 2007 06:46 PM
    R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

    Richard S. Plattner
    PLATTNER VERDERAME, P.C.
    rplattner@plattner-verderame.com
    877-805-4529 (toll free)
    602-266-2002 (ph)
    602-266-6908 (fax)
    316 E. Flower Street
    PO Box 36570
    Phoenix, AZ 85067-6570
    "The only thing necessary for the triumph of evil is for good men to do nothing." -Edmund Burke

    I write in support of the comments by Scott Palumbo & Amy Langerman opposing the provision requiring plaintiffs to submit medical releases. The fundamental right to medical privacy embodied in the doctor-patient privilege should not, and probably cannot, be abrogated by rule change.

    Even more importantly, the doctor-patient privilege should be retained by all Arizona citizens, not just those who were injured so badly that their claims exceed the arbitration limit. Amy and Scott have set forth in detail why the proposed rule change would work an injustice on indviduals seeking justice. Let me add that the proposed change would also severely discourage individuals from ever agreeing that their cases should be subject to arbitration, which would lead to a massive increase in motion practice about which cases should be included in arbitration, which would add to the court's burdens.

    Czachar@zacharlaw.com
    Posts:

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    14 May 2007 08:59 AM
    R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

    Christopher J. Zachar, Esq.
    Zachar & Associates, P.C.
    3301 E Thunderbird Rd
    Phoenix, AZ 85032-0001
    Ph: 602-494-4800
    Fax: 602-494-3320

    Rachelle M. Resnick, Clerk Of Court
    ARIZONA SUPREME COURT
    1501 West Washington St., Room 402
    Phoenix, Arizona 85007

    Re: Comment to Proposed Amendment to Rule 75(a), Ariz.R.Civ.Proc.

    Dear Justices:


    I have been made aware of the proposed Rules changes to Rule 75(a). I have read the posted comments. My opinions on this matter mirror the discussions of Amy Langerman, Scott Palumbo and Steve Cohen.

    I urge you to reject the prosed amendment to Rule 75(a).

    re@rnelaw.com
    Posts:

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    14 May 2007 10:24 AM
    R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

    Robert N. Edwards
    Wilcox Legal Group PC
    1850 N Central
    Suite 1050
    Phoenix, AZ 85004
    Ph: 602-631-9555

    My name is Robert Edwards, I am an attorney who practices in both Arizona and Minnesota. I began my practice in Minnesota in 1978, and my Arizona practice in 2001. I practice almost exclusively in the area of personal injury litigation, usually representing plaintiffs. I am certified as a Civil Trial Specialist by the National Board of Trial Advocacy.

    I am concerned about the proposed revisions to Rule 75. My concerns are very similar to those expressed by Amy Langerman, and others opposed to the changes. As the Rules of Civil Procedure now provide, the production of medical records in personal injury litigation is a fairly inexpensive proposition in that only one person need acquire those records, that being the plaintiff's attorney. The proposed changes to Rule 75 will change this procedure and will inevitably result in increased expense in litigation. Furthermore, the proposed changes contain no protection for the injured plaintiff's private and confidential medical records.

    Should the court decide, in spite of the objections, to approve these proposed changes, I would suggest amending the second sentence of Rule 75 (a)3 to read as follows:

    In addition, the plaintiff shall disclose the identity of any healthcare provider that treated the plaintiff within the five-year period preceding the filing of the complaint, with a general description of the treatment provided, and provide an executed HIPAA-compliant medical release for each such provider, limited to the physical, mental or blood conditions voluntarily placed in controversy by the plaintiff in the case. Should the defense decide to utilize those authorizations, they must inform the medical provider that the release is limited as specified by the plaintiff, and shall not, under any circumstances, attempt to obtain any records outside the restrictions of the release. Violation of this provision will result in mandatory sanctions to be assessed by the arbitrator or the trial court in such amount as will deter such conduct in the future. In the event that records unrelated to the physical, mental or blood conditions set forth in the release are produced, the defense is prohibited from using that information in any manner and shall immediately deliver those records to plaintiff's counsel, and shall not retain any copies.

    Thank you very much for your consideration.

    Very truly yours,

    Robert Edwards

    State Bar Number 020813

    elliotglicksman
    Posts:

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    14 May 2007 10:46 AM
    R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

    Elliot A. Glicksman
    Law Office of Elliot Glicksman
    145 South Sixth Avenue
    Tucson, AZ 85701-0001
    Ph: 520-628-8878
    Fax: 520-622-0521

    I agree with these comments. I am very concerned about abuses in requiring releases to be signed in arbitration. Often people see doctors for various ailments, many of which are unrelated to the claims in litigation. If people are required to sign releases, healthcare providers will disclose all medical records regardless of whether they concern medical conditions "at issue". One of our most important privileges, the right to communicate in confidence with your doctor, will be lost. Unrelated and very private medical conditions will routinely be disclosed.
    danziskin
    Posts:

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    14 May 2007 11:30 AM
    R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

    Daniel I. Ziskin
    Sole Practitioner
    PO Box 7447
    Phoenix, AZ 85011-7447
    Ph: 602-234-2280
    Fax: 602-274-9297

    I agree with the comments opposing required production of Hippa compliant medical releases. Such a rule is contrary to the underlying principles of mandatory disclosure, assumes one side of the case is not playing fair, and has the real potential for disclosure of privileged medical records. No compelling need has been demonstrated to change the rule from mandatory disclosure of records to mandatory disclosure of records plus a release to your adversary so that they can check up on our veracity.

    tominphx
    Posts:

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    14 May 2007 11:58 AM
    R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration


    Thomas R. Stillwell
    SBA #012371
    Thomas R. Stillwell, P.C.
    P.O. Box 16447
    Phoenix, AZ 85011
    602-253-1789


    I am writing to voice my agreement with the writers who have written in opposition to this proposed rule. As a specialist in Workers' Compensation, I practice in a forum where we deal with medical records, disclosure challenges and privacy issues daily. This rule is unnecessary and ill-advised, for the reasons stated by others.

    Frank V
    Posts:

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    14 May 2007 12:09 PM
    R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

    Frank Verderame
    Plattner Verderame PC
    316 E Flower St.
    PO Box 36570
    Phoenix, AZ 85067-6570
    Ph: 602-266-2002
    Fax: 602-266-6908


    Please see my letter attached.
    Attachments
    clague3
    Posts:

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    14 May 2007 12:38 PM
    R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

    Clague A. Van Slyke, III
    2401 E. Speedway Blvd.
    Tucson, AZ 85719
    520-325-8660
    520-325-8565
    cvs3@dakotacom.net
    State Bar # 007100


    I concur with those who oppose the proposed rule change requiring plaintiffs in a personal injury action subject to compulsary arbitration to waive thier protected privacy rights. To the extent that this proposed rule conflicts with federal HIPPA law every plaintiff's attorney would be required to determine if compliance with a rule of civil procedure can trump federal law. I believe that federal law would prevent me from complying with this rule.

    The Rules of Civil Procedure prove a quick, efficient and protected mechanism to obtain medical records by supbpoena with notice to the party. Under this system every party knows what records are being requested and privledges are protected.

    In this day and age of heightened concern over the misuse of personal data and private information any rule that would permit a one sided fishing expedition without any guarantee of privacy is out of step with the evolving world of privacy protections in this age of identity theft and misappropriation of personal data.

    I am a former President of the Arizona Trial Laywers Association and served on the Civil Practice and Procedure Committe in the mid '80's. The cuurent practice in Pima County by both the defense and plaintiff's bar is to adhere to the subpoena process for obtaining medical records. That process best serves the interest of all parties and the medical providers.

    Clague Van Slyke, III

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