Legislative Memo

Ken Pokalsky
Vice President of Government Affairs
T 518.465.7511


S.3296-A (Defrancisco) /A.694-A (Lancman)



Patient Privacy Protection Act



February 27, 2012


The Business Council opposes this legislation which would prohibit a defendant in a personal injury, medical, dental, or podiatric malpractice or wrongful death lawsuit from conducting informal interviews with the plaintiff’s nonparty treating physicians.

Informal discovery of information often uncovers pertinent facts about a matter that can assist both litigants in a dispute and further its resolution expeditiously. The New York Court of Appeals has affirmed  the necessity of ex-parte interviews in quickly resolving disputes in its 2007 ruling in  Arons v. Jutkowitz 9 NY 3d 393. The court found that while a treating physician cannot be compelled to give an informal interview, a party can make such a request in a manner that is in compliance with the Federal Privacy Rule. This is a practice that is fair and open to both parties, cuts down on litigation costs, and moves the process forward more quickly.

Another concern with this bill is that it would only apply to medical malpractice cases. To disallow this interview practice solely in medical malpractice cases, but not other types of cases will create a glaring inequality in our system of justice.

This proposal will only increase litigation costs and raises medical liability premiums. At a time when New York’s medical liability rates are among the highest in the nation, driving physicians to other states, we should not continue to push policies that will increase liability insurance even more. This will only create greater shortages of doctors, increase healthcare costs, and increase the financial burden on businesses.

For these reasons The Business Council recommends that S.3296-A/A.694-A not be approved.