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Ex Parte Interview Of Plaintiff’s Treating Physicians

July 19, 2011 • Posted By Susan A. Romano • Trial Practice

The Court of Appeals in Arons v. Jutkowitz examined the question of whether defense attorneys may conduct informal ex parte interviews of plaintiff’s non-party treating physicians pursuant to HIPAA compliant authorizations.  Arons v. Jutkowitz, 9 N.Y.3d 393, 850 N.Y.S.2d 345 (2007).  This tool permits defendants to interview treating physicians with respect to the medical information relevant to the case.  These interviews are voluntary and the physician is free to decline the request.  Grieco v. Kaleida Health et al., 82 A.D.3d 1671, 1672, 919 N.Y.S.2d 443 (4th Dep’t 2011).

Although the purpose of the conversation is to assist defendants, there does not appear to be any limit on the plaintiff’s ability to suggest non-cooperation to the doctor.  In fact, the Second Department in Porcelli v. Northern Westchester Hospital Ctr., found that warning the physician that the interview was not at plaintiff’s request and was not mandatory or Court ordered was considered proper warning language which could be contained in the authorization.  Porcelli, 73 A.D.3d 447, 882 N.Y.S.2d 130 (2d Dep’t 2009). 

The filing of the Note of Issue is not a condition precedent to the request for an authorization for such interview.  Courts have held that although such physician interviews are usually conducted post Note of Issue, ex parte interviews of plaintiff’s treating physicans may occur, and preferably should occur, prior to the filing of the Note of Issue.  Shefer v. Tepper, 73 A.D.3d 447, 899 N.Y.S.2d 610 (1st Dep’t 2010); Tirado v. Miller, 75 A.D.3d 153, 901 N.Y.S.2d 358 (2d Dep’t 2010).

The Court of Appeals in Arons acknowledged that “the filing of the note of issue denotes the completion of discovery, not the occasion to launch another phase of it” and expressed a preference that such interviews should occur prior to the filing of the Note of Issue.  Arons, 9 N.Y.3d at 41.  However, the Court of Appeals notes that if the interviews could not be conducted until after the Note of Issue was filed, if the treating physician refuses to be interviewed, it would be too late to seek a deposition or interrogatories in the alternative.  Id.; see also, Akalski v. Counsell et al., 29 Misc.3d 936, 940, 908 N.Y.S.2d 537, 540 (Sup Ct, West. Cty 2010). 

 Should a party proceed without a proper authorization from the plaintiff, the interview will likely be deemed invalid as the interview would have been “improperly . . .  obtained”.  CPLR §3103(c).  The remedy is likely preclusion, preventing the defendant from calling the treating physician as an expert witness at trial and from introducing the information obtained during the interview.  Muzio v. Napolitiano, 82 A.D.3d 947, 948, 919 N.Y.S.2d 64, 65 (2d Dep’t 2011). 

Despite the potential difficulty in securing an interview with a treating physician, it can be a useful tool in defending personal injury claims.  Consideration should be given to using this tool to gain more information about plaintiff’s claim and injuries.