Torts, Insurance and Compensation Law Weblog

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.

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In Paccio v. Whiting Door Manufacturing, Supreme Court, Nassau County (Lally, J.), addresses, among other things, whether the plaintiff sustained an "acquired injury to the brain caused by an external physical force resulting in permanent total disability" as set forth in Workers' Compensation Law sec. 11.   As you remember from Rubeis v. The Aqua Club, this particular injury must render the employee incapable of employment in any capacity; however, the injured plaintiff need not be unable to engage in the functions of daily living or be reduced to a vegetative state (see prior post)

The interesting point about this case is that the Court determined that an issue of fact existed as to whether the plaintiff's injuries qualified for this particular "grave injury," basing its conclusion on the plaintiff's expert affidavit regarding a physical examination that occurred a year before the affidavit's date.  The expert had numerous gaps in her affidavit, failing to clarify whether certain impairments were present prior to the plaintiff's accident.