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Medical Malpractice: Your Case Is On The Trial Calendar-Can Defense Lawyers Talk to Your Doctor?

By Gerry Oginski

Your New York attorney has notified the Court that your case is ready for trial.

It's been two years since you started your medical malpractice lawsuit in New York. You must now wait months before being notified by the Court that jury selection is to start on a specific date. In the interim, your lawyer tells you that the defense lawyers want to talk to your treating doctor. The purpose? To get dirt on you and try and minimize your injuries and permanent damages. "Can they do this?" you ask.

The answer is yes.

Here's what happens when a lawyer notifies the Court in New York State that a case is ready for trial:

1. The lawyer must file a document with the Court called a "Note of Issue" that must be sent to all the lawyers in the case. That document tells everyone that the discovery phase of the lawsuit is over. Discovery is the opportunity for all sides to obtain records, documents and pre-trial testimony relating to the case. Once the "Note of Issue" is filed, that closes the door to any party getting additional discovery.

2. In New York, if a defense lawyer wants to talk to your treating doctor, they must get a permission slip from you to talk to them. Otherwise, the doctor, by law, cannot speak to anyone about your care and treatment. "But it's not fair," you say. "Why should they use my own treating doctor to say bad things about me, or to ruin my case with his statements?" you ask frantically.

Here's the rationale: When you bring a lawsuit for medical malpractice or personal injury, you put your medical condition in issue. You claim that as a result of a doctors' wrongdoing, you suffered permanent injury. The defense is entitled to learn about the extent of your injuries by getting your medical records, and if necessary to speak to your treating doctors.

3. Recent case law in New York has held that if a defense attorney wants to question your doctor after the case has been put on the trial calendar, they can, with some restrictions.

4. The defense lawyer must first tell your lawyer he wants to question your doctor. Your lawyer is then obligated to provide a permission slip, that you have signed, giving the doctor permission to speak to the defense lawyer. Importantly, that permission slip should say that the doctor is not obligated to speak to the defense lawyer, but can do so if he chooses. That authorization should also say that the purpose of the defense lawyer speaking to the doctor is not at the request of the patient, but solely to help the defense lawyer in defending a doctor or hospital in this case.

The rationale is that the patient's attorney can speak to her treating doctor at any time, whereas the defense attorney cannot. That's why NY Courts have allowed this procedure to take place, to give the defense a chance to find out what the patient's treating doctor has to say, prior to trial.

Full post as published by New York Medical Malpractice Blog on November 26, 2007 (boomark / email).