Defense counsel in Muzio v. Napolitano, a recent medical malpractice case, conducted an interview of the plaintiff’s treating physician, a nonparty, without obtaining a Arons authorization. The Arons case requires that plaintiffs provide defendants with written authorizations allowing counsel for the defense to interview plaintiff’s treating physicians. However, this interview cannot take place without such authorization.
The Second Department of the New York State Appellate Division reversed the Trial Court’s decision holding that since any information obtained by the defendant from the interview was “improperly obtained” the Supreme Court should have granted plaintiff’s pretrial motion for a protective order. The protective order sought would have precluded the defense from calling the treating physician to testify during the medical malpractice trial as an expert witness for the defense, and from introducing the information obtained from the interview at trial.