Three years ago, we discussed the trial level decision in Mercado v. Schwartz, 63 Misc.3d 362 (Sup. Ct., Suffolk Co., 2019), which held void and unenforceable an agreement, signed by the plaintiff prior to undergoing treatment by the defendant doctor, that imposed various requirements on any subsequent malpractice action. See Moore and Gaier, New Approach to Pretreatment Agreements Held Unenforceable, NYLJ, Oct. 1, 2019, p. 3. The Appellate Division, Second Department, recently affirmed that holding in a detailed opinion, Mercado v. Schwartz, ___ A.D.3d ___, 2022 WL 3395569 (2d Dept. 2022), which is one of the subjects of this column.

The other subject involves recent Appellate Division decisions addressing authorizations for ex parte interviews by defense counsel of plaintiffs’ treating physicians under Arons v. Jutkowitz, 9 N.Y.3d 393 (2007). These decisions address language that may be placed in authorizations permitting such interviews, the scope of such authorizations, and the impact of noncompliance with the Arons procedure.

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