Appellate Division, Second Department Hold Defendant is Not Entitled to Post-Note of Issue Interview with Plaintiff's Treating Physician

In Arons v. Jutkowitz, the Appellate Division, Second Department held that Article 31 of the CPLR does not provide a mechanism for defense counsels' informal practice of interviewing ex parte a plaintiff's non-party treating physician post note of issue.  Although the Court framed the issue as one of first impression regarding the interplay of the Federal Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.; hereinafter HIPAA) and the defense bar's informal practice of privately interviewing plaintiffs' nonparty treating physicians after a note of issue has been filed, the Court refused to direct the plaintiff to sign authorizations for interviews of plaintiff's physicians based on Article 31 (New York's discovery rules).  The case arose in the context of a malpractice action.

A read of this decision is important to supply a background of this informal practice, as well as a background of HIPAA.