Thursday, November 29, 2007

ex parte interviews -- talk to 'em if you got 'em

The Court of Appeals recently held, in Arons v. Jutkowitz, 2007 WL 4163865 (Nov. 27, 2007), that an attorney may speak with an adverse party's treating physician when the adverse party has placed his or her medical condition in controversy. Arons resolved several appeals including one from the Fourth Department, Kish v. Graham, 40 A.D.3d 118 (4th Dep't 2007) (precluding attorneys from conducting ex parte interviews of non-party treating physician(s) of an adverse party).

Under Arons, to speak with a non-party treating physician (or other health care professional), an attorney "must simply reveal the client's identity and interest, and make clear that any discussion with counsel is entirely voluntary and limited in scope to the particular medical condition at issue in the litigation." The Arons Court assumed "'that attorneys would make their identity and interest known to interviewees and comport themselves ethically.'" Id. (quoting Niesig v. Team I, 76 N.Y.2d 363, 376 (1990)).

Arons held that a plaintiff who puts medical condition at issue must sign HIPAA-compliant authorizations. Nevertheless, neither a signed HIPAA-compliant authorization nor a HIPAA court order requires "a health care professional to communicate with anyone; they merely signal compliance with HIPAA and the Privacy Rule as is required before any use or disclosure of protected health information may take place." Consequently, physicians may speak with counsel if they chose to do so.

Arons also held that an interviewing attorney need not disclose "copies of all written statements and notations obtained from the physician during the private interviews, any audio or video recordings or transcripts, and interview memoranda or notes (excluding the attorneys' observations, impressions or analyses)."

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