It has now been over 20 years that attorneys defending medical malpractice cases have had to confront the restrictions imposed by HIPAA, and almost 10 years since the Court of Appeals established the means whereby informal interviews of physician fact witnesses may be conducted. The court in Arons v. Jutkowitz, 9 N.Y.3d 393 (2007) established the ground rules for defense counsel to discuss protected health information with non-party medical providers who have participated in the treatment of patients who waived the physician-patient privilege by placing their medical conditions in controversy. Arons authorizations are now widely available in personal injury litigation at any point in the proceedings, with the court-stated preference that the interviews be conducted prior to the filing of the note of issue. See Shefer v. Tepper, 73 A.D.3d 447 (1st Dep’t 2010); Wright v. Stam, 81 A.D.3d 721 (2d Dep’t 2011); and Akalski v. Counsell, 29 Misc.3d 936 (Sup. Ct., Westchester Co., 2010).
Arons interviews are particularly important to attorneys defending medical malpractice cases because the information gained may be useful in assessing every aspect of informed consent, standard of care, causation, prognosis, and the quantification of damages. The interview may be obtained to assist in the preparation for the depositions of the parties (per La Rose v. Cricchio, 33 Misc.3d 865 (Sup. Ct., Rockland Co., 2011)) and may include interviews of paraprofessionals in addition to physicians. See Caminiti v. Extel West 57th Street, 139 A.D.3d 482 (1st Dep’t 2016).
