Appellate Division, Third Department Grants New Trial Regarding Ex Parte Communications With Plaintiff's Treating Physician

The New York Court of Appeals recently held in Arons v. Jutkowitz that a plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  This ruling allows defense counsel to conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  

What happens when defense counsel conducts an ex parte interview but does not seek HIPAA-compliant authorizations?

The Appellate Division, Third Department in Straub v. Yalamanchili recently affirmed a trial court's granting of the plaintiff's motion to set aside a jury verdict based on defense counsel's two ex parte interviews with the plaintiff's treating physicians without obtaining the plaintiff's authorization under HIPAA.  Notably, the motion to set aside the verdict was based on the interests of justice.  The Court noted that defense counsel, through the ex parte interviews, was able to obtain information that came as a complete surprise to the plaintiff's counsel and that plaintiff's counsel was unable to rebut.

Comments

[David H. Rosen]

Your headline is in error, to the extent that it implies that the 3rd Dept decision applied the Court of Appeals' opinion in the Arons case. Defendant's attorney in Straub conducted an informal interview with plaintiff's treating physician, before the Court of Appeals' decision. The AD viewed this as violating the law in effect at the time, citing the AD opinion in Arons.
This should not be viewed as holding that an informal interview conducted now, but without the benefit of an authorization, should automatically lead to a new trial.

[Matt]

Thank you for the clarification David. I clarified the headline to avoid any confusion.

[גוף חימום]

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[אהרוני ליסינג]

AD considered this violation of the law in force at the time, referring to the opinion in Aaron AD. This should not be considered a finding that the informal conversation today, but without the benefit of a permit shall automatically lead to a new trial.