James R. Farley and Associates
5151 E. Broadway, Suite 1550
Tucson, AZ 85711
(520)519-0232, Ext. 451
[email protected]
#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.

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

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).

Steven A. Cohen
Geoffrey M. Trachtenberg
Levenbaum & Cohen
362 N. 3rd Ave.
Phoenix, AZ 85003
602-271-0183
Fax: 602-271-4018

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

Kent Hammond
Rudolph & Hammond, LLC
8686 E. San Alberto, Suite 200
Scottsdale, AZ 85258
Phone: 480-951-0700
Fax: 480-951-1185

Craig J. Simon
Cantor Simon PLLC
2141 E. Broadway Rd
Suite 120
Tempe, AZ 85282-1705
Phone: 480-858-0070
Fax: 480-858-0073

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.

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.

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.

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.

R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

Richard S. Plattner
PLATTNER VERDERAME, P.C.
[email protected]
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.

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).

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

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.

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.

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.

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.

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
[email protected]
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

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.

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.

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.

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.

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.

R-06-0021 Rules of Civil Procedure Rules 72-76 Compulsory Arbitration

Peter M. Gorski
Gilcrease & Gorski, PLC
[email protected]
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.

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.

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.

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

David J. Diamond
Goldberg & Osborne
33 North Stone Avenue
Suite 900
Tucson, AZ 85701
Ph: 520-620-3975
Fax: 520-620-3991

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

Christopher Jensen 711 Whipple Street
Sean Phelan Prescott, AZ 86301-1717 TEL: (928) 778-2660
Of Counsel: Hans Clugston [email protected] 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

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

Juanita Mann, President
Arizona Association of Superior Court Clerks
P.O. Box 668
Holbrook, AZ 86025
928-524-4176
[email protected]

Anne E. Findling
Robbins and Curtin, p.l.l.c.
301 East Bethany Home Road
Phoenix AZ 85012
(602) 285-0100
(602) 265-0267
[email protected]
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

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
[email protected]

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.

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: [email protected]



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.

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

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

R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

Gabriel D. Fernandez
437 W. Thurber St.
Suite 17
Tucson, AZ 85705
Ph: 520-293-6255
Fax: 520-293-3937

R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

William J. Risner
Risner & Graham
Attorneys At Law
100 North Stone
Suite 901
Tucson, AZ 85701
Ph: 520-622-7494
Fax: 520-624-5583

R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

Frederick C. Berry, Jr.
Law Offices of Frederick C. Berry, Jr.
2400 North Central Avenue
Suite 106
Phoenix, AZ 85004
Ph: 602-274-5700
Fax: 602-274-8393

R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

William C. Bacon
Goldberg & Osborne
33 North Stone Avenue
Suite 900
Tucson, Az 85701
Ph: 520-620-3975
Fax: 520-620-3991

R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

Michael F. Magee
Harris Powers & Cunningham PLLC
Park Coronado Suite 101
361 East Coronado
PO Box 13568
Phoenix, AZ 85002-3568
Ph: 602-271-9344
Fax: 602-252-2099

R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

Melissa L. English
Haralson, Miller, Pitt, Feldman & McAnally, PLC
One South Church Avenue
Suite 900
Tucson, AZ 85701-1620
Ph: 520-792-3836
Fax: 520-624-5080

R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

Tom J. Hagen
Tom J. Hagen, P.C.
One East Camelback Road
Suite 550
Phoenix, AZ 85012
Ph: 602-931-3960
Fax: 602-248-0091

R-06-0021 Rules of Civil Procedure, Rules 72-76 Compulsory Arbitration

J. Scott Wickland
Law Office of J. Scott Wickland
1921 Motor Avenue
Suite B
Kingman, AZ 86401
Ph: 928-718-8888
Fax: 928-718-8889

Final Comments by the Committee on Compulsory Arbitration

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
[email protected]