Most of you have already trudged through the New York Court of Appeals’ 32-page decision in Arons v. Jutkowitz and Kish v. Graham.  For those who didn’t, the Court held that defense counsel may conduct an ex parte interview with a a plaintiff’s treating physician post-note of issue.  A plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  The defense attorney need not hand over to the plaintiff’s attorney notes, memoranda or recordings of the informal interview; the treating physician is not compelled to cooperate.  Judge Pigott dissented, arguing that Article 31 of the CPLR does not provide for this type of discovery and its silence on the matter indicates that the Legislature did not authorize it.

Numerous bloggers have weighed in on this case:  this post at New York Personal Injury Law Blog (with comments), this post at A Buffalo Lawyer, this post at Outside Counsel, this post at HealthBlawg, and this post at Drug and Device Law.

I’m trying to shed my "defense attorney mind-frame," but I just don’t see how the absence of a provision in the CPLR reflects that such ex-parte interviews are disallowed (a la Judge Pigott’s reasoning in his dissent).  Informal discovery devices exist that both parties use to gain information, most of which are not set forth in the CPLR.  What’s the justification for precluding this discovery device where the plaintiff has already put his or her physical or mental condition at issue (especially where the physician can refuse to cooperate and can testify at trial about what the defense counsel asked)? 

I’d really value your opinion and encourage your comments.