Super Lawyers
William C. Altreuter
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Friday, March 23, 2007

I can't recall if I've written about it here, or if I just talked about it in class, but there's an interesting issue that's been brewing across the state recently, and now the Fourth Department has weighed in. It seems that it has been the practice in medical malpractice cases to request an authorization permitting defense counsel to interview the plaintiff's treating physicians. In instances where plaintiff's counsel won't furnish the authorization, courts have ordered it.

This is different from seeking to depose a doctor as a non-party witness: the sought-after interviews were conducted ex parte. (For you lawyers outside of New York, this is also different from the usual expert deposition, too. We don't do those here in the Empire State.)

Kish v. Graham (2007 NY Slip Op 02376) says "there are compelling reasons for prohibiting such interviews," including the fact that there are no provisions in the law permitting such informal disclosure; the existence of formal discovery procedures to accomplish this sort of disclosure; and privilege concerns.

I am particularly intrigued by the Court's observation that, "[W]e can conceive of no reason for allowing a practice that concededly is not permitted prior to the filing of a note of issue to be permitted after the note of issue is filed". Could this signal the dawn of a new era in which notes of issue have some meaning?

I also think it is interesting that Kish is a 3-2 decision. (Thanks to New York Civil Law for the cite.)

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