2012 could be an eventful year for medical malpractice law in The Empire State. If passed, a new bill working its way through New York's legislature will overturn a 2007 court ruling, henceforth prohibiting parties defending medical malpractice claims from having private access to injured patients' treating physicians.
Bill Would Ban Closed-Door Defense Interviews of Plaintiffs' Doctors
Similar to the relationship between a client and his or her New York medical malpractice attorney, the doctor-patient relationship is a highly personal, intimate association that is traditionally safeguarded against outside intrusion. When a plaintiff files a medical malpractice claim against a doctor, it is true that his or her health is brought into question, such that some personal medical information must be subjected to court scrutiny. But, a fair shake for medical malpractice defendants does not mean they should have completely unfettered access to plaintiffs' physicians.
However, in 2007, a Court of Appeals ruling in the case Arons v. Jutkowitz expanded medical malpractice defendants' access to plaintiffs' physicians into previously unheard of territory. The ruling has allowed medical malpractice defendants to conduct private interviews with plaintiffs' non-party treating physicians (in other words, plaintiffs' doctors who are not otherwise involved in the litigation) so long as they respect the procedural requirements of the federal Health Insurance Portability and Accountability Act (which allows such interviews, but requires that defendants first obtain plaintiff authorization).
A number of legislators (along with one dissenting judge) have complained that the judiciary overstepped its bounds with Arons v. Jutkowitz. If it is passed, the new 2012 bill will address these concerns by prohibiting medical malpractice defendants from conducting private interviews with a plaintiff's treating physician.
Proponents claim that the bill will remain fair for defendants, who will still have the opportunity to question physicians at depositions with both sides present; it will merely protect patients' privacy by ensuring the opposing side does not have access to a plaintiff's doctor in a private, solitary setting. The bill is gaining ground; earlier forms of it have passed multiple times in the New York Assembly, and it recently passed muster in the New York State Senate Judiciary Committee by an overwhelming 21-2 vote.
Yet, not everyone is on board. Defense attorneys say that the informal interviews which would be eliminated by the bill are a powerful tool to determine whether a plaintiff's alleged health problem stems from a preexisting condition. In addition, the Greater New York Hospital Association claims the bill would increase malpractice insurance premiums by six percent (although the bill's sponsor called the six percent estimate "nonsense").
What Could the Bill Mean for Those Injured by Medical Negligence in New York?
For those bringing medical malpractice claims, the bill may be of some benefit. It could help them ensure that any defense information gathered about possible preexisting medical maladies is fully tested by the adversarial process. It will also ensure that plaintiffs know exactly what medical information is being divulged, and grant plaintiffs the opportunity to object to the release of anything irrelevant to the case.
If you think a doctor's error may have caused you harm, learn more about your rights to compensation and how this bill may affect you. Get in touch with an experienced New York medical malpractice attorney today.