Medical Malpractice – Defense Firms Denied Right To Interview Plaintiff’s Treating Docs

For the last few years in New York a dispute has existed with respect to the right of a defense firm to privately interview the treating doctors of a plaintiff after the matter has been certified ready for trial.

Last year, one of New York’s four intermediate appellate courts (the Second Department) said that such interviews were not permitted (Arons v Jutkowitz).

Now, the Fourth Department, in a decision dated this past Friday, has agreed with the Second, albeit in a 3-2 decision, protecting patients from having their treating physicians cold called by defense lawyers or investigators, and protecting plaintiffs from being forced to authorize such interviews in writing.

Thus, the case seems destined for New York’s Court of Appeals. The majority and dissenting opinions in Kish v Graham can be found here.

Addendum: Curious as to ultimate fate of the first of these decisions (Arons), I checked and found that leave to appeal to the Court of Appeals was just granted on March 8. (Since Arons was unanimous, it could not be appealed as of right.) Thus, the issue is going up.

Second Addendum (12/5/07) – The Court of Appeals has reversed. See: NY Court of Appeals Allows Defendants to Privately Question Plaintiffs’ Doctors (11/27/07)


Comments are closed.

The New York Personal Injury Law Blog is sponsored by its creator, Eric Turkewitz of The Turkewitz Law Firm. The blog might be considered a form of attorney advertising in accordance with New York rules going into effect February 1, 2007 (22 NYCRR 1200.1, et. seq.) As of July 14, 2008, became an advertiser, as you can see in the sidebar. does not control the editorial content of the blog in any way.

Throughout the blog as it develops, you may see examples of cases we have handled, or cases from others, that are used for illustrative purposes. Since all cases are different, and legal authority may change from year to year, it is important to remember that prior results in any particular case do not guarantee or predict similar outcomes with respect to any future matter, including yours, in which any lawyer or law firm may be retained.

Some of the commentary may be become outdated. Some might be a minority opinion, or simply wrong. No reader should consider this site (or any other) to be authoritative, and if a legal issue is presented, the reader should contact an attorney of his or her own choosing for advice.

Finally, we are not responsible for the comments of others that may be added to this site.