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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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Author Messages
rhinsch
Posts:

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14 May 2007 12:55 PM
R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

Randy Hinsch
Plattner Verderame PC
316 E Flower St.
PO Box 36570
Phoenix, AZ 85067-6570
Ph: 602-266-6570
Fax: 602-266-6908
I agree with the opinions expressed by Frank Verderame in the attached letter.
Attachments
Curtin
Posts:

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14 May 2007 01:29 PM
R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

John Curtin
Robbins & Curtin, pllc.
301 E Bethany Home Rd
Suite B-100
Phoenix, AZ 85012-0001
(602) 285-0100
Fax: (602) 265-0267

I wish to register my agreement with the concerns raised by Amy Langerman and Scott Palumbo. While I do not have anything to add to their well-reasoned critiques, I share in their objections to the rule changes.

sleshner
Posts:

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14 May 2007 02:29 PM
R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

Stephen I. Leshner (SBN No. 004754)
Stephen I. Leshner, P.C.
1440 E. Missouri Ave., Ste. 265
Phoenix, AZ 85014

Certified Specialist, Injury and Wrongful Death
Litigation, State Bar of Arizona Board of Legal
Specialization

I agree with the comments submitted by Ms. Langerman. I have been practicing law for 31 years, and handle a substantial amount of tort cases which are subject to compulsory arbitration. This proposed rule change will only make these cases more difficult and contentious, and should not be adopted.

rplattner
Posts:

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14 May 2007 03:17 PM
R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

Richard S. Plattner
Plattner Verderame, P.c.
316 E Flower St
PO Box 36570
Phoenix, AZ 85067-6570
Ph: 602-266-2002
Fax: 602-266-6908


I support the comments of Amy Langerman, Scott Palumbo and Geoffrey Trachtenberg. (I also posted a response yesterday but since it does not appear, I am posting again.) The proposed amendment to require provision of a HIPAA release to defense counsel effectively eliminates the doctor-patient privilege for the tort plaintiff. This provision is grossly unfair to plaintiffs, and creates the anomaly that by making a bigger claim a plaintiff can retain their privacy right. This will create a landslide of litigation as many plaintiffs would assert their claims exceed the arbitration limit to retain their privacy/privilege. The proposed rule is bad for injury victims and bad for the court system.
dadelman
Posts:

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

Daniel J. Adelman
Adelman German PLC
5665 N Scottsdale Rd
Suite F-105
Scottsdale, AZ 85250-0001
Ph: 480-607-9166
Fax: 480-607-9031

I write to echo the comments of Amy Langerman and Scott Palumbo. It would be manifestly unfair to force a plaintiff to exercise an unlimited waiver for all records protected by the physician-patient privilege, simply because the plaintiff brought a lawsuit regarding a totally unrelated condition. Any waiver is and should be limited to the conditions legitimately put at issue in the suit. If a person breaks his or her arm in a crash, there is simply no justification for stating that the defendant's insurance company should be entitled to obtain that person's entire medical history pertaining to completely unrelated conditions. For example, if a case involves a broken arm, there is no justification for requiring the provision of records from a gynecologist or urologist. Arizona law recognizes that a waiver of privilege is limited. Under this procedure, a privilege log should be created and if there are legitimate grounds for seeking the records, a request can be made. Absent such grounds, it is simply inappropriate and contrary to law to state that, if a person wants to sue for his or her broken arm, he or she must forfeit all privacy interests for every medical condition that might be in any record at any time. Ms. Langerman and Mr. Palumbo present a thorough analysis of the legal bases for rejecting the requirment that is under consideration. I will not repeat that analysis here, but I strongly urge the defeat of this provision for all the reasons they state in their excellent posts.
pgorski
Posts:

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14 May 2007 08:19 PM
R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

Peter M. Gorski
Gilcrease & Gorski, PLC
pgorski@gilcreasegorski.com
480-730-1777 (ph)
480-831-5966 (fax)
1400 E. Southern Ave., Suite 1010
Tempe, AZ 85282

I too concur with the sentiments and logic contained in the comments posted by the Palumbo, Wolfe, Sahlman & Palumbo firm, by Amy Langerman, Richard Plattner, Jeff Bouma, Frank Verderame and the majority of others who have posted before me. The provisions requiring plaintiffs in personal injury cases to submit medical releases is unjust and generally a very bad idea, for the reasons set forth in detail by my colleagues.

Further, I agree with those who have asserted that increasing the dollar limit on cases subject to this fundamentally flawed system of compulsory arbitration to $75,000, or any other number, is unfair to injured individuals seeking justice against insurance carriers. Since this arbitration process cannot be made binding, it should not be compulsory at any dollar amount.
shp
Posts:

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15 May 2007 01:55 PM
R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

Steve Patience
414 E. Southern Ave.
Mesa, Az. 85213
(480)833-8800


I am a East Valley attorney with an active personal injury practice. I am writing this to echo the comments of Amy Langerman and Scott Palumbo concerning the mandatory production of Hippa medical releases, and to voice my opposition to such.
frank
Posts:

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15 May 2007 03:37 PM
R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

Frank I. Powers
Harris, Powers & Cunningham PLLC
361 E Coronado
Suite 101
PO Box 13568
Phoenix, AZ 85003-3568
Ph: 602-271-9344
Fax: 602-252-2099

I agree with the many comments of the others who oppose this proposed amendment. Concerning the specific provision requiring the production of HIPPA compliant medical releases, I also want to emphasize it has the very real potential, guarantee, for abuse, and the disclosure of otherwise privileged and unrelated medical records.

lkoschney
Posts:

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15 May 2007 03:59 PM
Eric S. Shapiro, Esq.
Attorney At Law, P.L.C.
3030 N Central Ave
Suite 608
Phoenix, AZ 85012
Ph: 602-274-7400
Fax: 602-274-8585
Attachments
lkoschney
Posts:

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15 May 2007 04:10 PM
David J. Diamond
Goldberg & Osborne
33 North Stone Avenue
Suite 900
Tucson, AZ 85701
Ph: 520-620-3975
Fax: 520-620-3991
Attachments
richardlangerman
Posts:

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16 May 2007 05:17 PM
I would like to submit the attached reply in opposition to proposed rule 75.

Richard Langerman
3216 N. 3rd St. #200
Phoenix, Az. 85012
602-240-5525
Az. Bar # 009175
Attachments
Chris Jensen
Posts:

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17 May 2007 02:34 PM

Christopher Jensen 711 Whipple Street
Sean Phelan Prescott, AZ 86301-1717 TEL: (928) 778-2660
Of Counsel: Hans Clugston jensenlawfirm@qwest.net 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
anthonywiggins
Posts:

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17 May 2007 04:32 PM
I support Mr. Bouma and all others in opposition to amending the Rules of Civil Procedure to compel plaintiffs to provide general medical releases in all arbitration cases. Such a rule change removes the strong physician/patient privilege in Arizona and permits defendants and their insurance carriers to gather, review and store sensitive medical information about plaintiffs, even when those sensitive medical conditions have not been voluntarily placed in issue by any claim made by the plainitff. Proponents of the rule change offer no compelling policy reason for stripping plaintiffs of their privacy simply because they make a claim for damages resulting from a defendant's negligence.

Anthony J. Wiggins
Wiggins Law Offices
7400 N. Oracle Rd., Suite 323
Tucson, AZ 85704
520-623-3149
nasha
Posts:

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18 May 2007 11:19 AM
Juanita Mann, President
Arizona Association of Superior Court Clerks
P.O. Box 668
Holbrook, AZ 86025
928-524-4176
nasha@COSC.maricopa.gov
Attachments
afindling
Posts:

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18 May 2007 12:29 PM
Anne E. Findling
Robbins and Curtin, p.l.l.c.
301 East Bethany Home Road
Phoenix AZ 85012
(602) 285-0100
(602) 265-0267
anne@robbinsandcurtin.com
SBN 010871

I write today in opposition to the proposed rule change as it relates to disclosure of medical records. I agree with the comments previously posted by Amy Langerman and others. Too often, rules such as that proposed are used not for the legitimate purpose of evaluting the nature and extent of injuries, but to create barriers for injury victims. In most cases, the nature and extent of injuries can be reasonably ascertained by reference to a few key documents: discharge summaries, narrative reports, and the like. Particularly in a case that would be subject to compulsory arbitration, the actual treatment records may not be controversial at all. The "gold" however comes when the records are mined for embarrassing facts, conditions, or statements, a tactic that will be encouraged by the blanket disclosure proposed by the rule change.
It is telling that no similar disclosure provision applies to defendants. There is no similar requirement, for example, that defendants produce driving records in an MVA case or releases for medical records if the driver may have been impaired by virtue of a medical condition, medication or substance abuse. The underlying theme is that defendants are uniformly presumed to provide adequate discovery; plaintiffs are presumed to make inadequate disclosures. Defendants are trusted to make threshold discoverability determininations; plaintiffs are not.
Medical records are an easy target. Full and fair disclosure by defendants is more difficult to describe, but equally important to the system.
The purpose of the protecting medical records is to encourage open and honest communications with health care providers on the most personal of issues. For cases subject to Compulsory Arbitration, the proposed rule change is unnecessary and creates a real risk for abuse.


Anne Findling
jana flagler
Posts:

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18 May 2007 06:37 PM
I am writing to express my opposition to the proposed changes to Rule 75. I agree with the comments of attorneys Amy Langerman, John Jeffrey Bouma, Frederick C. Berry and Elliot Glicksman. It will be a grave mistake for this state to enact a procedural rule which has the effect of subverting the hard-fought protections provided under federal HIPPA laws. 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. Frederick Berry is correct - 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.

Expediting litigation is not so important a goal as to warrant the erosion of the protections of privacy and doctor/patient privilege. The costs of the proposed rule change far outweigh the benefits.

Jana Flagler
Cardinal & Stachel, P.C.
2151 S. Hwy 92, Ste 100
Sierra Vista, AZ 85635
(520)452-1002
jflagler@cardinalstachel.com
sidmarable
Posts:

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21 May 2007 01:49 PM
R-06-0021 Rules 72-76 Compulsory Arbitration, Rules of Civil Procedure


Sidney T. Marable
Law Offices of Sidney T. Marable, P.L.C.
3707 N. 7th Street, Suite 250
Phoenix, AZ 85014
602-230-8100

I join other replies in opposition to the proposed rule change in Rule 75(a),ARCP, making it mandatory for plaintiffs in injury cases to provide HIPPA compliant medical authorization to defendants.

I represent claimants in personal injury claims. I am a former President of the Arizona Trial Lawyers Association and have served on the State Bar Civil Rules and Procedure Committee.

There is no demonstrated compelling reason to create a rule which mandates waiver of a claimant's doctor/patient privilege and right to privacy concerning their medical records and medical history if a claimant elects to pursue a claim through arbitration versus by-passing arbitration and proceeding directly to a jury.

The proposed change requires waiver of a substantial right to privacy before a claimant can participate in the mandatory arbitration process. When advised of this waiver requirement or the option of proceeding directly to a jury when considering the amount the claimant wishes to pursue, what claimant will select the arbtration limit? This becomes a pivotal factor when you also consider most auto wreck arbitrations are being automatically appealed by certain auto insurers.

The proposed rule unfairly creates two different classes of tort claimants with drastically different rights, considering the claimant who pursues a higher claim amount is not required to automatically waive all of his medical history which has no relevancy to the injury at issue. For example, a female claimant in arbitration alleging an automobile wreck fractured her arm, would be required under the new rule to waive all her medical history contained in her primary care physician's records, which might include reports from her GYN, pychologists other medical consultants and lab results unrelated to her fractured arm.

Mandating a HIPPA release which is limited to the injury at issue does not work either, if the records are delivered directly to defendant's attorney office. In my experience, doctors and their staff are too busy to take the time to review the records to determine what should not be provided, so they send everything. When there is an issue with the records disclosed by plaintiff concerning her injury claim, then the current procedure of allowing the plaintiff's attorney to review the records first, object if appropriate, create a privilge log and have the judge decides what should be disclosed is best.


larry
Posts:

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21 May 2007 04:20 PM
Rules 72-76 Compulsory Arbitration, Rules of Civil Procedure

Laurence G. Tinsley, Jr.
Solomon and Relihan
1951 W. Camelback Rd. #110
Phoenix AZ 85015
fax 602-242-6933
email: ltinsley@srbfirm.com



Dear Justices:

Please accept this posting which states my concerns regarding the Arbitration Rules Petition currently pending before the Supreme Court. I have served on the Arizona Civil Rules and Practice Committee since 2000, and rarely comment on pending Rules changes.

It is because of some real concerns I have pertaining to the section of the proposed rule requiring disclosure by a plaintiff of HIPAA releases in arbitration cases. You'll note that the State Bar's Board of Governors has also filed a recommendation against this Petition, with its own alternative proposals, and I echo the comments of the State Bar.

My concern is that the proposed rule would significantly impact and change the substantive law on privilege and medical releases. The current rules and case law only require disclosure of medical records by the Plaintiff where the particular medical condition is placed at issue. This is to preserve the sanctity of the doctor patient relationship.

If there is a request for additional medical records, under current practice and rules, the plaintiff obtains the records, reviews them and discloses the relevant medical records. The Plaintiff then has an obligation to provide a privilege log under Rule 45 that is sufficient to allow the Court and opposing party to evaluate the privilege claim. If that doesn't resolve it, the Court should order an in camera inspection of the records, and makes its decision. This system has been in place for years, and has worked well. Yet the Petition seeks to make arbitration cases an exception to the rules, the case law, and this system.

I rely on Rule 16(c)(1) and the following case law as the basis of my concerns. Bain v. Superior Court, 148 Ariz. 331, 714 P.2d 824 (1986); Blazek v. Superior Court, 177 Ariz. 535, 869 P.2d 509 (Ct. App. 1994); Styers v. Superior Court, 161 Ariz. 477, 779 P.2d 352 (Ct. App. 1989); Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 ( Ct. App. 1989).

My concern also arise from real life examples, such as a recent one involving one of my clients who suffered a whiplash injury in a car accident. Some of her records discuss sensitive issues such as her sex life and STDs for which she has received treatment. Those issues should have no place in the ligitation, but if required to be disclosed they could be used by the other side as an attempt to, at the least, impeach her, and at worst, impugn her before a jury of her her peers, or an arbitrator. While I don't see why a Court would allow that information to go before a jury, the harm is created by the disclosure itself, and could create a chilling effect to bring legitimate injury claims into the Court sytem, by serving only to embarrass and humiliate a citizen about what should be irrelevant, private matters.

I am unaware of any current rule of procedure that requires disclosure of medical authorizations simply if requested by the defense. Even in the case of medical malpractice litigation, the sanctity of the doctor patient privilege is recognized by the rules. While the med mal rules do allow a broader use of medical authorizations than cases typically arbitrated, those limitations conform to the practice I outlined above.

For instance, Rule 16(c) refers to authorizations under Rule 26.2(a)(2), the medical malpratice rules. As expained by Foster Robberson in an article originally published in the Arizona Attorney, the Comments and Committee Notes to Rule 26.2 do not identify the intended purpose or intent of this language, and there is no indication that this amendment was intended to abrogate or overrule Bain or Duquette. Foster's article explains, referring to the old Rules citations:

Obtaining Records From A Co-Defendant

Medical Malpractice Rules 1(B)(1) and (2) provide for an exchange of available medical records between plaintiffs and defendants. There is no specific provision for exchange of records among co-defendants. An amendment to Medical Malpractice Rule 1(D)(1) states that upon request at the CPC, the court shall require an authorization to produce copies of records. This takes care of the occasional problem of obtaining records from a co-defendant. Records obtained must be provided to all parties and any expense is borne by the party obtaining the records.

Foster Robberson & Deborah M. Warzynski, New Rules for Medical Malpractice Cases, 29 Ariz. Att'y 10, 14 (Feb. 1993) (emphasis added). In other words, the "authorization" language of Rule 16(c) was not intended to allow a defendant to obtain medical records directly from a nonparty healthcare provider - it simply was intended to allow co-defendants to exchange records, and fills a hole in the rules to ensure full disclosure of the medical records actually at issue in med mal cases, which only one defendant possesses.

While I believe that there are some problems with the current arbitration rules, in that many cases do not get arbitrated within the specified time frame, I don't believe that substantive law impacting real rights of real persons and sacrosanct privileges should be subordinated to such perceived procedural difficulties. I would encourage the Court to look to the modifications proposed by the State Bar to "fix" the arbitration system.

My final comment pertains to the part of the proposed rule changes that makes dispositive motions appealable. This seems to run counter to the Petition's proposed purpose: to make the arbitration system more efficient. While the stated intent of the Petition is to help resolve cases within a new, accellerated time frame, I believe the real life impact of the new appeals provision on arbitrated cases will be to cause additional litigation, through a new appeals process, and therefore breath additional life and time of these cases within the system -- contrary to the original intent of having certain cases certified for arbitration to reduce the workload on the Court system and reduce expenses.

Thank you for your time and for considering my comments.

Laurence G. Tinsley, Jr.
ecrowley
Posts:

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22 May 2007 01:09 PM
R-06-0021

Petition to Amend the Rules of
Civil Procedure, Section IX,
Compulsory Arbitration Rules
72-76

Robert B. Van Wyck, Chief Bar Counsel
Bar No. 007800
State Bar of Arizona
4201 N. 24th St., Suite 200
Phoenix, Arizona 85016-6288
(602) 340-7241
Attachments
lkoschney
Posts:

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30 May 2007 01:42 PM
R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

Clifford L. Heiney
SB# 14185
Bank of America Financial Plaza
1201 South Alma School Road
Suite 3500
Mesa, AZ 85210
Ph: 480-964-3500
Fax: 480-964-1633
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