A bill seeking to prohibit defendants in medical malpractice suits from conducting interviews with plaintiff’s non-party treating physicians passed the New York State Senate Judiciary Committee.
Typically defendants will use interviews with plaintiff’s treating physicians, who have not been named as defendants themselves, to determine if the alleged injuries could have arisen from other issues, such as pre-existing conditions.
The bill will not prohibit defendants from questioning physicians completely because questioning can also occur during depositions. However, the bill would prevent defendants from engaging in private interviews with non-party doctors.
If the bill passes, it will overturn Arons v. Jutkowtiz, a ruling where the Court of Appeals – the highest court in New York – held that defendants have a right to interview plaintiff’s doctors so long as the comply with HIPAA’s requirement of obtaining authorization from the plaintiff to conduct the interviews.
The dissenting judge in Arons, Judge Eugene Pigott did not believe that such interviews should be permitted and stated that the issue “requires legislative action” which is precisely what Sen. John DeFrancisco and Rory Lancman from the Assembly have introduced to the NY Legislature.
Both Sen. DeFrancisco, a Republican, and Lancman, a democrat, serve as of counsel to personal injury firms.
This is not the first time the bill has been introduced. The Assembly attempted to pass the bill last year, however it died in the Senate.
Those who oppose the bill have stated if the measure is enacted, it will increase medical malpractice insurance premiums by six percent.
It appears, however, that this bill will even the playing field between plaintiffs and defendants and take away one more advantage physician-defendants have over plaintiffs.
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