Even though a large percentage of my practice is devoted to NY and PA medical malpractice cases, I have tremendous respect for the medical profession. In fact, three of my college roommates and one of my best friends now are doctors. I know most doctors are intelligent, compassionate and dedicated to good patient care. Of course, like every profession, there are bad apples in the medical field who give a bad name to all the good doctors out there.

But whether good doctor or bad doctor, an almost universal truth in the medical profession is that doctors dislike lawyers. I think the reasons for this are many– some legitimate and some not– but that will have to be a subject for another post. This post is devoted to a recent NY case that I think is HORRIBLE LAW and that I KNOW is going to create further friction between doctors and lawyers. There is no doubt in my mind that this case will result in great abuse by insurance companies and their defense lawyers….

In Arons v. Jutkowitz, the NY Court of Appeals, reversed many years of prior law by concluding that a person bringing a lawsuit may be compelled to provide medical authorizations to a defense lawyer permitting that lawyer to conduct informal interviews with the injured person’s treating doctors.

Why is this a problem? Many, many reasons.

First, because these doctor interviews occur outside the courtroom and with no judicial supervision, there is nothing that prevents the defense lawyer from interviewing the doctor about totally irrelevant and unrelated medical conditions. That means if you get hurt in a car accident and hurt your back, the defense lawyer for the driver that hit you can sit down with your doctor and ask about the erectile dysfunction you had 10 years ago or the abortion you had 20 years ago.

Second, many doctors already dislike treating accident victims because they know that treating accident victims carries with it a number of hassles– payment issues with the no-fault insurance carriers, numerous requests for medical records and reports from the carriers and their attorneys, the possibility that they might be called to testify in the victim’s case, etc. Now with this decision, add one more HUGE hassle– treating Dr’s will be regularly pestered by defense lawyers to meet with them for these interviews.

The Court of Appeals says not to worry about these problems because they say that they expect that defense lawyers will voluntarily conduct themselves properly and in good faith. Give me a break!! This is a classic example of the Court not having a clue about what goes on in the real world of personal injury and medical malpractice litigation. To say that defense lawyers will not push the envelope on this is a pipe dream.

As just one example of how abusive I think the defendants will be using this decision as a sword against accident and malpractice victims is a NYC case that Eric Turkewitz blogged about here where a defense firm requested 76 (yes, SEVENTY SIX!!) separate interviews about one person in one case! Sure, defense lawyers will conduct themselves properly….. I just know they will…. Well, the Court of Appeals says they will…. I have a bridge for sale that the Court of Appeals might be interested in buying…..

Needless to say, I think this is a horrible decision and one that tries to load the gun against injury victims.

There is one ray of sunshine to this decision– although it REQUIRES the injured person to provide a medical authorization to the defense attorney, the treating Dr is NOT required to actually talk to the defense lawyer. Accordingly, we plan to educate all doctors that they may politely decline these defense interviews that are designed to undermine their patient’s claim.

Hopefully, most Dr’s will respect their patient’s privacy concerns and will politely decline these interviews. Time will tell….

Thanks for reading,

James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com