Every lawyer who handles medical malpractice cases in New York State knows about the Court of Appeals' decision in Arons v. Jutkowitz. It gave defendants the right to obtain from plaintiffs HIPAA-compliant authorizations allowing defendants to conduct ex parte interviews with a plaintiff's subsequent treating physicians. And it made no distinction between pre and post note of issue time periods.
What the decision was careful to say is that participating in such an interview by a defense lawyer is optional. And most plaintiff's lawyers, myself included, make certain to highlight that information in any Arons authorization (as they have come to be known) provided to the other side.
While the Arons decision has been a boon for the defense bar, it has made lawyers for plaintiffs uneasy, to say the least. It is difficult, if not impossible, for the plaintiff or his or her attorney to monitor such interviews. There is no obligation on the part of defense counsel to disclose information obtained during such interviews to counsel for the plaintiff, and there is no way to tell whether defense counsel overstepped the accepted bounds, i.e., avoiding privileged information about the plaintiff. Moreover, physicians are forced into a quandary by the Arons decision. Most who have treated a victim of medical malpractice are sympathetic to their patient. On the other hand, most also feel guilty about not helping a fellow physician who is being sued, and in their effort to "help," they risk harming the case of their injured patient. Many physicians will ignore Arons authorizations, but will then also ignore the efforts of the plaintiff's lawyer who actually needs to communicate with them, as they have been turned off to lawyers generally after being harassed by defense lawyers holding Arons authorizations. These, and other concerns have resulted in proposed legislation to reverse the Arons decision.
In Rockland County, Justice Alfred J. Weiner decided an Arons-related discovery motion that essentially holds that there is no room for subtleties in the Arons decision--the authorizations must be provided to defense lawyers, no matter what the circumstances may be. The case is Larose v. Cricchio. It was decided September 1, 2011.
Counsel for the plaintiff wanted to hold off on providing the Arons authorizations requested by defense counsel until the defendant doctor had been fully deposed as to his personal knowledge of the case. Plaintiff's counsel's concern was that allowing ex parte interviews to occur before defendant's deposition would result in defendant's testimony being "colored or skewed by after-acquired information." Justice Weiner, finding this to be an issue of first impression in the Arons context, wrote that plaintiff's concerns did not "warrant establishing Defendant's deposition as a condition precedent to the acquisition of Arons authorizations." He supported the decision by relying on the fact that the patient-plaintiff had brought suit, thereby waiving the physician-patient privilege, and on the Arons holding, which allowed for no exceptions to the rule mandating the providing of the authorizations.
I understand that Justice Weiner was constrained by the Arons decision to rule as he did. But this case is a good illustration of the problematic nature of that decision. It fails to account for the subtleties of real-world practice. As shocking as it may sound, there are ethically-challenged defense lawyers who take advantage of the Arons decision and use the ability to contact the plaintiff's physicians as a means of intimidating them from testifying on plaintiff's behalf. Whether the result is intended or not, the onslaught of attempts to contact subsequent treating physicians waged by large defense firms does have the effect of making the doctors wary of speaking to any lawyers, plaintiff's included. The process adds time and expense to every case, since the first thing many doctors being courted by defense lawyers will do is call their insurance carriers for guidance, for an explanation of the relatively new rules, and for a discussion of what their options are in terms of their responses. And these are just some of the reasons that Arons should be revisited.
Physicians inclined to help their patients who have been injured by another's medical malpractice already face an uphill battle. There are organizations such as Medical Justice that actively seek to destroy the reputations and livlihoods of any doctor who testifies as an expert witness for a plaintiff in a medical malpractice case. Medical societies do the same thing, in a more subtle fashion. Any physician who dares to help a patient injured by medical malpractice puts himself at reputational risk. Seen against this unfortunate tableau, the Arons decision is just not helpful, for doctors or patients.
