New York Law permits defense lawyers to have ex parte, private discussions with your client’s treating physicians. Upon receipt of an “Arons” authorization from plaintiff’s counsel, defense lawyers can schedule private meetings with your client’s treating physicians.
Few defense lawyers inform the treating physicians that such meetings are voluntary and they are not required to speak with them. Additionally, there is always a risk that the defense lawyer will attempt to engage in discussions with the treating physician of medical conditions, i.e., substance abuse, psychiatric conditions, that are not relevant to the injuries claimed in the lawsuit. The treating physicians may not know that such topics are off-limits under the law.
To avoid such private, ex parte meetings, we send the letter below to our client’s treating physicians as soon as we mail “Arons” authorizations to defendants’ lawyers.
Our Letter to the Treating Physicians re: Meetings with Defense Counsel
Re: Henry Jones
Date of Birth: July 1, 2016
Dear Dr. Smith:
We represent your patient, Henry Jones, in a legal action which is currently pending. With respect to that case, you may have recently received, or you will shortly receive, requests from the law firms of [insert name of defendants], along with authorizations that we have signed on behalf of your patient.
Those attorneys wish to privately interview you, either in person or by telephone, concerning the medical condition, treatment and prognosis of Henry Jones. Please be advised that, although we are required to sign the above-mentioned authorization, Henry Jones prefers that you do not engage in such private discussions with anyone except us concerning any aspect of his medical condition, treatment or prognosis.
While such an authorization and request is permitted under New York State law, many federal courts have rendered decisions holding that such authorizations and ex parte discussions are prohibited by federal law (HIPAA) and that federal law preempts state law regarding these issues. In re Vioxx Prods. Lib. Litig. 230 F.R.D. 473 (E.D. La. 2005); Croskey v. BMW of N. Am. Inc., 2005 WL 1959452 (E.D. Mich. Feb. 16, 2005); Crenshaw v. Mony Life Ins. Co., 318 F.Supp.2d 1015 (S.D. Cal. 2004); EEOC v. Boston Mkt. Corp., No. CV-034227 (LDW)(WDW), 2004 U.S. Dist. LEXIS 27338 (E.D.N.Y. Dec. 16, 2004).
Hopefully, the defendants’ lawyers will make it crystal clear in their request that you are in no way obligated to engage in private, ex parte discussions with anyone from their office or to risk violating federal law. Rather, New York State case law and the authorization simply state that you are permitted (but not required) to speak with someone from their office, if you wish. It is your decision to make.
You may wish to consult with your own attorney before deciding whether or not to agree to any request by the defendants’ attorneys.
Should you decide to discuss your treatment of Henry Jones with the defendants’ lawyers, please notify us immediately, as my firm would like the opportunity to be present for any discussion.
Thank you for your attention to, and cooperation, in this matter.
Very truly yours,
John H. Fisher, P.C.
John H. Fisher