Did You Know that the Defense Attorney is Speaking to Your Doctor?

            It is relatively well known that when you bring a personal injury action your medical records are disclosed to the defense.  However, currently in New York, pursuant to Arons v. Jutkowski, 9 N.Y.3d 393 (2007), you are also required to give your doctors permission to speak to the defense attorneys in a private, unrecorded conversation.  The “logic” of the Court of Appeals is based on the premise that attorneys prefer to informally interview witnesses, including doctors, to determine if they would be beneficial to his/her client’s position at trial.  Under the pre-Arons rules, the Court found that plaintiff attorneys had the advantage of informal access to the plaintiff’s medical doctors at the request of the plaintiff/patient.  The Arons Court required the plaintiff to sign an authorization permitting the doctor to speak informally to the defense attorney.  However, in its logic, the Court did not think through the potential abuses of this ruling.

            In a medical malpractice case, for example, there is no protection against an unscrupulous defense attorney from attempting to influence the doctor with statements like: they share medical malpractice insurance carriers with the target defendant; “imagine” if the patient sued you next; the target defendant is on the board of a prestigious hospital; or a multitude of less subtle ways of skewing the treating doctor’s potential testimony.  There have even been instances where the treating doctor has refused further treatment of the patient after one of these private “interviews”.  In other personal injury cases, the defense attorney must be given permission to speak to all of the client’s doctors – even if the treatment has nothing to do with the case.  For example, a woman with a broken wrist as a result of a car accident, may have to give permission to her gynecologist to speak to the defense attorneys.  The thought is that there may be some nugget of useful information about your broken wrist that can be gleaned from privately interviewing a completely unrelated specialist. 

            There is some hope to change this ill conceived rule of law coming from the NYS Legislature.  There is currently a bill working its way through the Legislature (S3296A/A964A) that would reverse the Arons Court and prohibit ex-parte interviews with treating physicians.  Please let your elected officials in Albany know that you are asking them to support this  bill.