One of the amazing things that causes lawyers to burst into laughter when watching "Law and Order" on TV is the number of times police and prosecutors just walk in and talk with parties and witnesses who are or should be represented by counsel. A large portion of each episode consists of such ex parte and impromptu witness interviews.

The New York Court of Appeals apparently really likes this show, and with respect to New York civil practice, recently made it reality TV in the decision of Arons v. Jutkowitz, decided Nov. 27.

Prior to Arons, the New York legal landscape was littered with opinions, many contradictory, as to whether in a bodily injury case defense counsel could obtain an authorization from a plaintiff allowing them to interview the plaintiff's treating physicians. Decisions allowing the practice generally held that so long as the interview was per authorization and confined to injuries and treatments at issue in the case (that is, no fishing around for new stuff or dirt), there was nothing in the CPLR precluding such interviews. Opponents of the practice countered that there was nothing in the CPLR expressly allowing such interviews as a "discovery" device, and such interviews were rife with opportunities for abuse and misdeeds of the blackest sort.

In Arons and two related cases, defendants attempted to interview the treating doctors on an ex parte basis, and to do so, requested HIPAA-compliant authorizations. The plaintiffs, spoiling for a fight, refused, and the trial courts granted motions by defendants to compel such authorizations. In the three cases up for review, the 2nd and 4th departments of the Supreme Court's Appellate Division reversed the trial courts, nixed the authorizations, and set the stage for the learned judges of the Court of Appeals to apply their TV savvy and weigh in on the issue on the side of defendants, and for allowance of such interviews.

What they said

The specific holding of Arons is that defense counsel may interview a plaintiff's treating physician privately and ex parte when the plaintiff has affirmatively placed his or her medical condition in controversy. The court did lay down some guidelines for doing so, and noted that the Health Insurance Portability and Accountability Act (HIPAA) imposes some procedural prerequisites unique to discussions with health-care professionals.

The lead case, Arons, involved a post-note-of-issue defendant request via HIPAA-compliant authorization to interview a plaintiff's treating physician. The plaintiff steadfastly refused to sign an authorization, and the defendant moved to compel. The motion was granted by the trial court, but the Appellate Division, 2nd Department, reversed on grounds that such a "discovery" device was not explicitly sanctioned in Article 31 of New York's Civil Practice Law & Rules (CPLR).

Related cases

Like a TV miniseries, this issue arose in the context of two related cases, so the Court of Appeals took them all up as a trilogy for a ratings sweep. One of them was Kish v. Graham, a local 4th Department case that had strongly held (albeit in a 3-2 opinion) that such ex parte interviews were prohibited and an abomination.

The court sanctioned as useful "informal discovery practices" such as private witness interviews, an issue previously addressed in cases involving employees and former employees of corporations, and now applying similar logic to the plaintiff's treating physicians. The Court of Appeals noted that the CPLR neither expressly authorizes nor forbids such ex parte interviews with non-party witnesses.

Relying on previous cases in this field, again usually involving corporate employees, the Court of Appeals cautioned that such a witness must not reveal privileged or confidential information, including conversations with attorneys or a party's legal team. The witness must understand and acknowledge that proscription and admonition. The interviewer must also reveal the client's identity and stake in the case and inform the witness that his or her cooperation is entirely voluntary, and the interview must be limited to medical conditions and treatments placed at issue in the litigation.

In some of the cases under review, the lower courts had imposed certain other conditions that the Court of Appeals expressly refused to apply as not required by either state law or HIPAA. For example, there is no need for the interviewer to surrender copies of written statements received from such a witness, or notes, transcripts or audio or video recordings from the interview.

The court briefly discussed the HIPAA statute and concerns, and noted that the statute allows disclosure per written authorization and for litigation purposes under 45 CFR 164.502. The court concluded that, so long as HIPAA-compliant authorizations are presented, there is no preclusion from that quarter on talking with treating physicians.

The court granted the motions to compel defense authorizations in HIPAA-compliant form, timely allowing such interviews with treating physicians.

Likely impact

A likely short-term fallout from Arons may be discussion at the legislative level to fashion some response, probably limiting this ruling. A second issue likely to arise is that the cases under immediate discussion by the Court of Appeals involved post-note-of-issue discovery. However, the court's logic and analysis do not seem dependent upon whether the request for such an authorization comes before or after the note of issue.

To take advantage of and comply with this ruling, the following steps should be taken:

• Serve HIPAA-complaint authorizations seeking an interview with a specific treating physician with reference to the medical conditions and treatments involved in the litigation.

• If an interview is granted, present the authorization on the record, tell the doctor that he or she is not to reveal material covered by attorney-client privilege or information learned from a party's legal counsel. The doctor should affirmatively state that she or he understands the admonition and will not divulge attorney-client information.

• The interviewer must reveal his or her client's identity and position in the litigation.

• The interviewer should advise the doctor that her or his cooperation and statement are entirely voluntary.

• Questions and answers should be limited to medical conditions or the key medical conditions at issue in the case, as established, for example, by the deposition testimony and bill of particulars.

The court expressly rejected any requirement that the interviewer surrender copies of statements or notes taken during the interview. A likely response from plaintiffs and their counsel to the defendant and the doctor is to be apprised of the date, time and location of any interview and the right to appear and be present, and the courts will likely have to grapple with that one next.

Armed with this decision and these caveats, defense counsel may now proceed like Sam Waterston from "Law & Order" and try walking into medical offices attempting to seek such interviews from doctors, most of whom are usually not eager to even be around attorneys, much less talk to them.

Earl Cantwell is a member lawyer in Hurwitz & Fine PC, where he practices in the business litigation and employment practices/workplace liability areas. He can be reached at ekc@hurwitzfine.com.