New York City, NY — New York Injury News — In this article, Robert G. Sullivan, Esq., an advocate for patients injured by medical negligence, sheds light on a little known practice used by attorneys representing healthcare providers. Under a recent decision, Arons v. Jutkowitz, attorneys for doctors and hospitals sued for medical malpractice may conduct entirely secret interviews of a patient’s physicians. The interviews are “secret” as neither patients nor their lawyers are present when the doctors are questioned. Worse, patients may never find out what was discussed! This decision changes the litigation landscape in medical malpractice suits, and jeopardizes a patient’s right to privacy.
In 2007, the Court of Appeals, New York’s highest court, held that defense counsel has the right to conduct private, informal interviews of a plaintiff’s non party treating physicians. Before this ruling, two lower appellate courts concluded that there were no provisions in New York law that permitted such private interviews. Until then, in most instances, the only way defense attorneys could speak with a plaintiff’s treating physician was during a sworn deposition, a proceeding attended by the patient’s attorneys as well.
In Arons, the Court of Appeals explicitly rejected the argument that patient privacy prevented informal interviews of treating physicians by defense lawyers. Instead, the Court reasoned, a patient waives the physician-patient privilege in bringing a personal injury action, affirmatively placing his or her mental or physical condition at issue. Lawyers for doctors sued by those patients have the right to interview any of the patient’s physicians. Defense counsel will not be compelled to exchange any notes or records created during a private interview with a plaintiff’s treating physician.
Although treating physicians are free to decline these interviews, the Arons decision is a major victory for the defense bar. Because these interviews are conducted outside of the formal deposition process, in which a transcript is created and provided to all sides, the usual safeguards regarding relevance and accuracy are no longer in place. In permitting informal interviews by defense counsel, the Court of Appeals appears to have cast aside the privacy provisions of the federal Health Insurance Portability and Accountability Act of 1996 (HIPPA). Although some medical conditions are waived by bringing suit, other conditions may not be. Determining the difference between the two is usually a matter of heated argument between adversaries.
The solution, according to the Court of Appeals, is to trust the defense lawyers. The Arons decision holds: “it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically.” Vesting such trust in the hands of those on one side of an adversarial proceeding does not make plaintiffs and their attorneys comfortable.
Under current New York law, for instance, if a medical malpractice victim brings suit for a delay in the diagnosis of breast cancer, the privacy of her unrelated drug, pregnancy and/or psychiatric history may no longer protected by federal statute. These aspects of her history are protected only by trusting that the lawyer defending the case, often hired by an insurance company, will not ask questions about them. Not surprisingly, we anticipate that the “secret interview” will be the source of disputes for years to come. We are hopeful that, in time, additional decisions will narrow the scope of permissible questions at these “interviews.”
Experienced medical malpractice attorneys throughout New York remain committed to fighting for the rights of clients in the face of this unfavorable decision. If “sunlight is the best disinfectant,” as a famous Supreme Court judge once wrote, the so-called Arons interview, secretive and mysterious, would appear to be a step back into the shadows. Patients’ attorneys are working to move back into the light. For instance, in a case where defense counsel argued that they were entitled to conduct informal interviews with a plaintiff’s treating physician during discovery, this office recently obtained a favorable ruling that such interviews need not be held until after the completion of all formal discovery. By delaying the “interview” until the end of the formal investigative portion of the case, with sworn testimony secured from all of the parties, a complete and open factual record is established first.