NY Appellate Court Forbids Informal Private Interview of PA by Defense Counsel

On July 12, 2023, the Appellate Division rendered a decision in what it described as a case of first impression: whether the Arons rule would allow defense counsel to conduct an informal ex parte (private) interview of a physician assistant who treated the plaintiff about the cause of an accident. The court contrasted how the Arons rule had permitted a medical provider (but not required) to be interviewed by defense counsel about treatment provided to the plaintiff. (see Arons v Jutkowitz, 9 NY 3d 393) In this case, the limited issue sought to be explored by defense counsel through a private interview of a medical provider, was what the plaintiff told the physician assistant about how the accident happened.

The plaintiff claimed that she tripped and fell while walking across a tree well causing her to fracture her wrist. However, the physician assistant who treated the plaintiff recorded that she had stated that "she was attempting to enter her automobile... when she tripped over a tree branch falling onto her outstretched right arm." In declining to compel plaintiff to provide an Arons authorization, the court noted that the defense was not prejudiced as they could conduct a deposition of the physician assistant. Yan v Kalikow Mgt., Inc., 2023 N.Y. Slip Op. 03817

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