The Stanley Law Offices
Tuesday, April 22, 2008
Authorization for defense counsel interview
To medical doctors as treating physicians:
My law firm represents clients in medical malpractice suits regarding conduct which allegedly falls below the standard of medical care in the community. As I'm sure you don't follow all the legal decisions of the courts, I am writing to make you aware of a recent decision known in the legal world as Arons v. Jutkowitz, 9 NY3d 393, 880 NE.2d 831 (2007). The New York Court of Appeals held that a plaintiff in a medical malpractice action may be compelled to furnish a HIPAA compliant authorization permitting, but not compelling, a treating physician of the Plaintiff to be interviewed by defense counsel.
A plaintiff’s concerns that defense counsel might overreach during this type of interview and obtain information which would be beyond the scope of the limited waiver of the medical privilege were brushed aside by the Court of Appeals. The court said that it is assumed said attorneys would make their identity and interest known to interviewees and comport themselves ethically.
The request by the defense attorney must be accompanied by an authorization signed by the Plaintiff, your patient, which states that you are permitted to discuss only the following medical conditions which are the subject matter of the lawsuit. Nothing contained in the authorization authorizes you to discuss anything about this Plaintiff, your patient, other than the stated medical conditions set forth in the authorization. The purpose of the interview is to assist the defendants in the defense of the lawsuit brought by the Plaintiff, your patient. The authorization is not at the request of the Plaintiff, your patient.
The authorization must state in bold letters that your willingness to participate in this interview is entirely voluntary on your part. You are free to decline the request for the interview.
My concern is that doctors really see lawyers as a pain in their side and may not realize what is happening in the legal world. Thus, when presented with a signed authorization, they may feel obligated to do the interview when they don't really have to and they will hate plaintiff’s lawyers even more than they do now. Hopefully, this blog will help reduce these bad feelings.
Richard E. Clark
My law firm represents clients in medical malpractice suits regarding conduct which allegedly falls below the standard of medical care in the community. As I'm sure you don't follow all the legal decisions of the courts, I am writing to make you aware of a recent decision known in the legal world as Arons v. Jutkowitz, 9 NY3d 393, 880 NE.2d 831 (2007). The New York Court of Appeals held that a plaintiff in a medical malpractice action may be compelled to furnish a HIPAA compliant authorization permitting, but not compelling, a treating physician of the Plaintiff to be interviewed by defense counsel.
A plaintiff’s concerns that defense counsel might overreach during this type of interview and obtain information which would be beyond the scope of the limited waiver of the medical privilege were brushed aside by the Court of Appeals. The court said that it is assumed said attorneys would make their identity and interest known to interviewees and comport themselves ethically.
The request by the defense attorney must be accompanied by an authorization signed by the Plaintiff, your patient, which states that you are permitted to discuss only the following medical conditions which are the subject matter of the lawsuit. Nothing contained in the authorization authorizes you to discuss anything about this Plaintiff, your patient, other than the stated medical conditions set forth in the authorization. The purpose of the interview is to assist the defendants in the defense of the lawsuit brought by the Plaintiff, your patient. The authorization is not at the request of the Plaintiff, your patient.
The authorization must state in bold letters that your willingness to participate in this interview is entirely voluntary on your part. You are free to decline the request for the interview.
My concern is that doctors really see lawyers as a pain in their side and may not realize what is happening in the legal world. Thus, when presented with a signed authorization, they may feel obligated to do the interview when they don't really have to and they will hate plaintiff’s lawyers even more than they do now. Hopefully, this blog will help reduce these bad feelings.
Richard E. Clark
posted by Richard E. Clark, Esq. at 4:43 PM
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