John L.A. Lyddane and Barbara D. Goldberg
John L.A. Lyddane and Barbara D. Goldberg ()

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).

While most defense attorneys are oriented toward the identification of potential fact witnesses among the non-party treating physicians, and the securing of Arons authorizations, many of those authorizations do not produce useful interviews. Neither practicing physicians nor defense attorneys have much spare time, and it is unlikely that an Arons interview will become a high priority task for a non-party provider. Even where a letter request is accompanied by a properly executed authorization, it is unlikely to produce an interview without further effort.

What makes the further effort worthwhile is the prospect that the non-party witness is one of the least biased sources of information on a broad list of topics which are relevant to the evaluation and presentation of the defendant’s position. Where the non-party physician was a prior or contemporaneous treater, she may have disclosed the same disputed risk, given the same unheeded advice, obtained the same disputed history, or found the same disputed course of diagnostic or therapeutic procedures to be in accord with the standard of care. Where the non-party physician treated the alleged injury, her assessment of the significance of the injury, the extent of any disability, and the expenses of treatment may differ substantially from what will be proposed by the retained experts of counsel for the plaintiff at trial.

Juries, and the courts, have long preferred the evidence of unbiased eyewitness professionals involved in the treatment to that of hired witnesses who first meet the patient in the courtroom at trial. See Levande v. Dines, 153 A.D.2d 671 (2d Dep’t 1989). Often, the non-party physician has treated the patient creating little or no contact with the defendants, and her observations have been made without any knowledge of the issues between the patient and the defendants. The cultivation of such a witness through an Arons interview helps to quantify the potential exposure, assist in the determination of how the case should be defended, and improve the chances that the credibility of the defendant’s version of the facts will be supported if the case has to be tried.

Obtaining Arons interviews early in discovery is well worth the attorney’s effort. On occasion, it may be necessary to obtain a non-party deposition of a treating physician who may not be available as a trial witness, but may be able to provide specific testimony on a small but important point, or position the case for summary judgment or a reasonable settlement. Under Civil Practice Law and Rules § 3117(a)(4), the deposition of the non-party physicians may be used at trial without showing that the witness is unavailable, so once the deposition is obtained, all parties are on notice as to what will be offered as trial evidence. Where the Arons interview takes place after the note of issue is filed, non-party depositions may no longer be an available modality.

In modern defense practice, performing targeted Arons interviews and following up in select cases with non-party depositions should be productive for the defendant. “Trial by ambush” has produced many great anecdotes, but it is no longer in favor. Where the input of fact witnesses is available to the court and to mediators prior to trial, evidentiary issues are clarified, questions of fact are narrowed, and obstacles to either summary judgment or settlement are eliminated. In an era where many significant cases are resolved in mediation, having preserved the evidence of non-party treating physicians by deposition makes evidence available to the mediator which otherwise would only be available later where the non-party physician testified at trial. Consider the cases involving delayed cancer diagnosis claims, where the non-party treating surgeon testifies that despite the alleged delay in diagnosis, the nature and location of the malignancy would have required the same treatment by him regardless of whether the diagnosis was made at an earlier point in time. Where information such as this is developed, a non-party deposition may preserve testimony which provides the defendant a complete defense.

Both from the perspective of the effort and expense of trial and the uncertain fate of the defendant at the hands of a lay jury, the physician defendant should prefer that the defenses relied upon are tested prior to the trial where that is possible. The Arons interview, followed by a non-party deposition, makes that course possible. In Gayle v. Neyman, 91 A.D.2d 75 (1st Dep’t 1983), the Appellate Division sustained a post-trial dismissal of the complaint following a verdict in favor of the plaintiffs. The case involved the alleged delay in the diagnosis of endometriosis and related conditions by the patient’s internist, which was claimed to have led to hysterectomy in a young female patient in her child-bearing years. The verdict was vacated based upon the trial testimony of three subsequent treating gynecologists who established that the diagnosis was timely and the hysterectomy was unavoidable. This testimony defeated the claim that there was a causal connection between the alleged malpractice and the damages of the patient such that the trial court found that the case was dismissible as a matter of law. With the increased availability of Arons interviews and non-party depositions, trials of such cases as Gayle are no longer necessary because the thoroughly prepared cases lend themselves to summary judgment.

The Arons interview and non-party deposition route is available for the defense of disputed issues of damages as well. Many patients have other injuries, comorbidities, and disabilities which are preexisting or otherwise unconnected to the causally related injuries, even where there is objective evidence that some harm flowed from the alleged malpractice. Where permanent disability or sequelae are claimed, the testimony of a prior treating physician that the patient’s hypertension, diabetes, and peripheral vascular disease limited both his work and life expectancy brings the damages exposure under better control. Where a needs analysis is used to project future treatment, therapy, and levels of care, having the testimony of those physicians who have spent years supplying the needs of the plaintiff, may be more important to a mediator, jury, or judge than the testimony of “experts” who depend on computer models and spend more time in court than they do in rendering services to patients.

For all of these reasons, Arons authorizations should be obtained at an early point in discovery and should remain effective for the remainder of the lawsuit. The focus of the case will develop over time and the authorizations may be needed at more than one juncture. Arbitrary limitations on the time of treatment or conditions treated should not be allowed since the scope of discovery is broad, and the entire medical history of a patient may be relevant to past and future claims of pain and suffering, loss of enjoyment of life, and disability, as well as work and life expectancy. The law clerk who thinks she can determine which medical records are relevant and which are irrelevant without seeing their content is dangerously uninformed.

In sum, the Arons authorization is an effective tool, but like any tool, it must be used to have purpose. Earlier and more effective use of this particular instrument will in most instances lead to a more predictable and controlled outcome and those instances are only identifiable in retrospect.