In a two-part column earlier this year, we reviewed the law addressing actions against physicians who conduct examinations on behalf of third-parties. The discussion included a genre of cases brought against doctors arising from “independent medical examinations” performed in the course of previous litigation, and whether such actions sounded in medical malpractice or simple negligence. One decision given significant attention in the column, Bazakos v. Lewis, 56 A.D.3d 15 (2nd Dept. 2008), was recently reversed by a closely divided Court of Appeals. See Bazakos v. Lewis, —NY3d—, NYLJ June 25, 2009, p. 42 (2009). Today we will examine the majority and dissenting opinions in that case, as well as their potential impact.
The right of defense counsel to conduct ex parte interviews of a plaintiff’s treating physicians has been the topic of many past columns. Our last discussion of the subject addressed the decision of the Court of Appeals in Arons v. Jutkowitz, 9 NY3d 393 (2007), which sanctioned such interviews and requires plaintiffs to execute authorizations permitting them. That decision has spawned a litany of related issues, one of which was recently resolved by the Appellate Division in Porcelli v. Northern Westchester Hosp. Ctr., —AD3d—, NYLJ June 18, 2009, p. 25 (2nd Dept. 2009). The decision in Porcelli will be the second focus of today’s column.
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