Can Defense Counsel Interview Plaintiff's Treating Doctors in Medical Malpractice Cases?

Last week the Fourth Department issued a very interesting decision in Kish v Graham, 2007 NY Slip Op 02376.  At issue was whether defense counsel in medical malpractice actions are entitled to conduct ex parte interviews of a plaintiff's treating physicians.

The Court concluded that such interviews were not permissible under New York law:

In our view, there are compelling reasons for prohibiting such interviews. First, there are no provisions in the law permitting such informal disclosure. Second, formal discovery procedures are in place that would allow an "on the record" discussion with such witnesses in the presence of counsel for the opposing party. Third, we are concerned here with witnesses with privileged medical information, not merely witnesses who will testify to nonprivileged facts. Thus, the established case law that permits equal access to fact witnesses does not apply here. Although a person's relevant medical history is placed at issue when an action is commenced by or on behalf of that person, access to that medical history is not without boundaries...Unsupervised interviews with treating physicians in an ex parte setting may result in the intentional or inadvertent revelation of a person's irrelevant medical history.

Fourth, and perhaps most importantly, we 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...There is no statutory or regulatory authority in New York that would permit ex parte interviews with a plaintiff's treating physicians and, to the extent that prior cases of this Court suggest otherwise, they are no longer to be followed. As the Second Department succinctly wrote, "compulsion of such unsupervised, private and unrecorded interviews plainly exceeds the ambit of [CPLR] article 31" (Arons, ___ AD3d at ___).

Eric Turkewitz over at the New York Personal Injury Law Blog noted that two of the four Appellate Divisions, the Fourth and Second Department, have reached this conclusion, and predicts that the issue will likely reach the New York Court of Appeals.  I'm inclined to agree with him, but only time will tell if we're correct.