Outside Counsel

Interesting decision by the Court of Appeals in Arons v. Jutkowitz (pdf file)today. It has been the practice among medical malpractice defense attorneys to request an authorization permitting an ex parte interview with the plaintiff's treating doctor after the plaintiff has filed a Note of Issue placing the case on the trial calendar-- and to make a motion compelling the production of such an authorization if such is not forthcoming. Apparently these motions were routinely granted.

I have a couple of problems with this notion. First, the ex parte interview with a treating doctor in this scenario takes place after discovery has closed-- that's the effect of a Note of Issue. Second, if defense counsel want to speak with a non-party treating physician, the CPLR provides for a means to do so-- it's called a non-party deposition, and it keeps everything on the record and above board. There is something inherently fishy seeming to me about conducting ex parte interviews with a doctor after discovery is over. In its decision the Court of Appeals calls this "informal discovery"- if it weren't a doctor, I'd call it "investigation", or pretrial preparation-- but either way, there is a privilege involved here, and the potential for crossing a line and violating that privilege when there is nobody watching from the other side seems significant to me. As Judge Pigott notes in his dissent, "there is simply no statutory authority under [Article 31]for off-the record interviews of treating physicians". He even goes Latin on it: "expresio unius est exclusio alterus"-- probably an expression he learned at LeMoyne. (I note also that Judge Pigott's dissent uses the word "perusing" in its correct sense-- that is, "to examine closely". Good work. I have no doubt that he will use "begs the question" correctly as well when the opportunity presents itself.)

So now we know what the law is. I suppose the next question is, should this be what the law is?