Although commencing a medical malpractice case waives the plaintiff’s physician-patient privilege,1 the manner and extent to which defense attorneys may access otherwise confidential information have created issues for trial and appellate courts alike. An important milestone in the resolution of those issues was the Court of Appeals’ 2007 decision in Arons v. Jutkowitz,2 which allowed defense counsel to informally interview the nonparty treating physicians of the patients pursuing claims against their clients. In the nine years since that decision, the approach to informal interviews of nonparty treating physicians has stabilized, and the courts have protected this valuable resource for the trial attorney.
Rationale
In discussing what it regarded as the importance of informal discovery practices, the Court of Appeals in Arons cited its 1990 opinion in Niesig v. Team I,3 where similar privilege issues affected counsel’s right to conduct ex parte interviews of the opposing party’s employees. The court in both cases recognized the value of informal discovery which can “serve both the litigants and the entire justice system by uncovering relevant facts, thus promoting the expeditious resolution of disputes.”4
