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)."

Friday, November 09, 2007

COA's Harris decision is not retroactive

In Wilk v. Genesee & Wyoming R.R., the Fourth Department held today that CPLR 205(a) tolling does not apply where a plaintiff commences a pre-action discovery proceeding and, without obtaining a new index number, commences suit. The first suit was dismissed under then-existing 4th Dep't precedent on the ground that the failure to obtain an index number constituted a non-waivable subject matter jurisdiction defect. Plaintiff never appealed. After the time to appeal passed, the Court of Appeals issued its decision in Harris v. Niagara Falls Bd. of Educ., 6 NY3d 155, 158(2006), which held that the failure to obtain a new index number is a waivable defect. Plaintiff commenced a 2d action. Defendants moved to dismiss, which was denied. ABL and his colleagues argued on appeal that the 2d action was not properly "commenced" within the meaning of CPLR 205(a). The Fourth Department agreed. It further held that Harris was improperly applied retroactively to the dismissal in the first action, noting that "[r]etroactivity analysis does not permit application of new law to cases already resolved" (quoting Cutler v. Travelers' Ins. Co., 159 AD2d 1014, 1015).