A new medical malpractice bill has recently passed through the New York State Senate Judiciary Committee in Albany that would protect plaintiffs and their medical privacy. If the bill is passed by the Senate as a whole, the new law would prevent defendants from interviewing a plaintiffs' doctors. Under the current New York law, as determined in Arons v. Jutkowitz, a 2007 Court of Appeals decision, defendants have been able to conduct private interviews of a plaintiff's medical professionals.
Prior to the decision in Arons, the only manner in which defense counsel could speak with a plaintiff's physician was through a deposition in which all parties are present, a trasnscript of the proceeding is recorded, and the patient can raise objections over questions concerning private medical matters that are not relevant to the lawsuit or otherwise confidential. Under Arons, defense counsel can conduct interviews of doctors outside the presence of patients and their attorneys.
A version of this bill has been passed several times in the Assembly, but it continuously dies in the Senate. With its passage in the Judiciary Committee, however, there is a possibility that it will eventually become law.
The chair of the Judiciary Committee has been vocal in his support of the bill, saying that the Court of Appeals' had "usurped the legislature's authority." His statements have echoed the lone dissenting judge in that case, in which he wrote that in order for a medical malpractice defendant to interview a non-party physician, there would need to be approval by the state legislature.
It is now only a matter of time before the legislators in Albany finally vote on the bill.
Source: Thomson Reuters, "Medical malpractice bill advances in NY legislature," March 2, 2012