New York’s high court allows ex parte interviews after discovery

Valerie Jablow, Associate Editor

The New York Court of Appeals has ruled 6-1 in a consolidated appeal of three cases that in lawsuits concerning a plaintiff’s medical condition, defendants may interview treating physicians privately, even after discovery ends. (Arons v. Jutkowitz, 2007 WL 4163865 (N.Y. Nov. 27, 2007).) The state joins 16 others where this practice is allowed.

“It’s a dark day for legal jurisprudence in New York,” said Philip Dinhofer, a lawyer in Rockville Centre, New York, who represented the plaintiff in Arons, the lead case. “Giving one party access to a source of evidence without the presence of the other is draconian in modern legal thinking.”

Arons was a medical malpractice and wrongful death lawsuit brought by the husband of a woman who died allegedly because of delayed medical care. After the plaintiff filed a note of issue—a procedural device in New York that signifies that discovery is complete and the case is ready for trial—the defense sought a private interview with the treating doctor.

The plaintiff refused to sign a document authorizing the interview, even though it complied with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) regarding the disclosure of private health information.

The defense then filed a motion to compel the plaintiff to sign the authorization. The trial court granted the motion, and the plaintiff appealed. The appeals court reversed, noting that other defendants had previously been prohibited from conducting such post-discovery private interviews because the state’s laws do not explicitly grant authority to conduct them.

The other two cases, Webb v. New York Methodist Hospital and Kish v. Graham, concerned the plaintiffs’ similar refusals to authorize post-discovery interviews with treating doctors. As in Arons, the trial court in each case ruled that the plaintiffs had to sign such authorizations, while the appellate courts reversed those rulings.

Writing for the high court majority about “the many benefits of informal discovery,” Court of Appeals Judge Susan Phillips Read discussed two previous decisions of the court involving post-discovery informal interviews: Niesig v. Team I (76 N.Y.2d 363 (N.Y. 1990)), a personal injury case, and Muriel Siebert & Co., Inc. v. Intuit, Inc. (8 N.Y.3d 506 (N.Y. 2007)), a corporate breach-of-contract case.

In Niesig, the court ruled for the plaintiffs in allowing informal interviews with certain employees of the defendant corporation, assuming that “attorneys would make their identity and interest known to interviewees and comport themselves ethically.”

Read noted that Niesig showed “there was no across-the-board ban on ex parte communications with an adversary’s current employees.” She wrote that “for the same ‘policy reasons articulated in Niesig concerning the importance of informal discovery,’ we held [in Siebert] that ‘so long as measures are taken to steer clear of privileged or confidential information, adversary counsel may conduct ex parte interviews of an opposing party’s former employee.’”

Read concluded that there was no reason “why a nonparty treating physician should be less available for an off-the-record interview than the corporate employees in Niesig or the former corporate executive in Siebert.”

In addressing the limits imposed by HIPAA on the disclosure of confidential patient information, Read noted that the statute “does not prevent this informal discovery from going forward, it merely superimposes procedural requirements,” including a signed authorization from the plaintiff.

She continued: “Plaintiffs waived the physician-patient privilege as to this information when they brought suit, so there was no basis for their refusal to furnish the requested HIPAA-compliant authorizations.”

Dinhofer disputed the court’s interpretation of the waiver.

“The court ignores the fact that the waiver is limited to only those body parts in issue,” he said. “Here’s our fear: A woman goes in for treatment of a lower back injury and mentions her concern that it’s related to an abortion she had. The treating doctor doesn’t write this down in his notes but mentions it in passing to the defense lawyer during the ex parte interview. Now you’ve put knowledge of an abortion in the defense lawyer’s hand, and he can blurt it out to a jury. It’s inflammatory material that has absolutely no bearing on the case.”

In fact, said Dinhofer, Niesig and Siebert are particularly ill-suited for comparison with medical malpractice actions like Arons.

“In Siebert, the court of appeals said that the executive knew he was dealing with privileged information and one could trust him not to mention it. “But the privilege here is the patient’s, not the doctor’s,” Dinhofer said. “They’re putting the onus of protection on the person in possession of the privileged information—the doctor—and taking it away from the person who has the right to protect it—the patient.”

New York City attorney Matthew Gaier wrote a brief in the consolidated appeal on behalf of the New York State Trial Lawyers Association (NYSTLA). In it, Gaier noted that although defendants can subpoena treating doctors to appear at trial or depose them during discovery, defendants and plaintiffs have inherently unequal positions regarding ex parte interviews.

“Defense interests in medical malpractice cases are in a strong position to coerce and cajole [treating] physicians into cooperating with the defense” through pressures from colleagues or threats to restrict hospital privileges, Gaier wrote.

Dinhofer noted that many of the state’s doctors are insured by the same malpractice carrier. He said that an insurer that covers both a defendant doctor and the treating physician could pressure the treating doctor to cooperate with the defense during ex parte interviews by demonstrating that the treating doctor may be in a similar situation and need the insurance company’s support then.

Court of Appeals Judge Eugene Pigott, the lone dissenter in the case, wrote that the question of post-discovery interviews “requires legislative action.” In fact, the state’s assembly passed a bill in June 2007 that would have expressly banned ex parte interviews with a treating physician of an opposing party in litigation. But according to Mark Lagerkvist, NYSTLA communications director, the bill has since stalled in a senate committee, and “its future remains uncertain.”

For Dinhofer, however, the court’s decision has created a new certainty.

“Now we’re going to have two types of cases going on in one case: the case on the surface, and then the real case after the note of issue, where everyone is going to be converging on these poor doctors,” he said. “It’s confounding the situation, where we could have a simple deposition where everyone knows everything at once. There’s no end to discovery now.”

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News & trends February 2008 | Volume 44, Issue 2

New York’s high court allows ex parte interviews after discovery

Valerie Jablow, Associate Editor

News & trends
February 2008 | Volume 44, Issue 2