## Facts

- Three consolidated medical-malpractice appeals involved plaintiffs who put a patient’s (or decedent’s) medical condition in controversy.
- After discovery was otherwise complete, defendants sought HIPAA-compliant authorizations so defense counsel could request voluntary, private interviews with plaintiffs’ treating physicians.
- Plaintiffs refused to provide authorizations, arguing defendants were limited to formal discovery methods and that HIPAA barred informal ex parte contacts.
- Trial courts granted motions compelling plaintiffs to sign HIPAA-compliant authorizations; at least one order also required defense counsel to provide plaintiffs any written interview materials within 72 hours.
- Intermediate appellate courts reversed, reasoning that informal ex parte physician interviews were not authorized by the CPLR or court rules despite privilege waiver.

## Issues

1. Whether, after a plaintiff waives the physician–patient privilege by placing a medical condition in controversy, defense counsel may seek voluntary ex parte interviews of the plaintiff’s treating physicians.
2. Whether HIPAA’s Privacy Rule prohibits such interviews or permits them only if specified procedural conditions are met.
3. Whether a trial court may compel a plaintiff to execute HIPAA-compliant authorizations for such interviews and whether the court may require disclosure of defense interview materials.

## Decision

- The court reversed the intermediate appellate rulings and reinstated trial-court orders compelling plaintiffs to provide HIPAA-compliant authorizations for defense-initiated physician interviews.
- It held that, following waiver, defense counsel may conduct informal ex parte interviews of treating physicians if the physician voluntarily agrees.
- It held that HIPAA does not forbid ex parte interviews; it requires compliance with HIPAA mechanisms permitting disclosure in litigation (including valid authorizations or appropriate court/qualified protective orders).
- It rejected a blanket requirement that defense counsel automatically provide plaintiffs with interview statements or materials (e.g., within 72 hours) to the extent such a condition intrudes on protected attorney work product beyond what ordinary discovery requires.

## Legal Principles

- A plaintiff who affirmatively places a medical condition in controversy waives the physician–patient privilege as to relevant information concerning that condition.
- After waiver, parties have equal access to evidence and witnesses concerning the condition at issue, including treating physicians, and informal witness interviews are not barred merely because they are not listed as formal CPLR discovery devices.
- Treating physicians’ participation in informal interviews is voluntary; physicians may decline to speak or require formal processes.
- HIPAA’s Privacy Rule permits litigation disclosures of protected health information through specified pathways (including valid authorizations and certain court orders), so ex parte interviews are permissible if those prerequisites are satisfied.
- The waiver is limited in scope: inquiries and disclosures must be confined to relevant medical information concerning the condition placed in issue; unrelated medical information remains privileged.
- Courts may compel execution of HIPAA-compliant authorizations to effectuate permissible discovery, but may not impose across-the-board production of defense interview materials that improperly reveals attorney work product.

## Conclusion

The court held that, in medical-malpractice actions, defendants may seek voluntary ex parte interviews with a plaintiff’s treating physicians once the plaintiff has put the medical condition at issue, provided HIPAA’s procedural requirements for disclosure are met; trial courts may compel HIPAA-compliant authorizations but cannot routinely compel disclosure of defense interview notes or statements in a manner that invades work product.


Arons v. Jutkowitz, 9 N.Y.3d 393 (N.Y. 2007)