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Open Bar: Handling Arons Interview Requests from Attorneys

graphic of a briefcase and gavel set against the backdrop of the New York City skyline with the MLMIC logo and text that reads "Open Bar"


Question: I’ve received an attorney’s request to discuss patient information, but I’m not named in the lawsuit. How do I proceed?

Response: In the worlds of medicine and dentistry, it is not unusual for non-party treating providers to receive a request from an attorney to discuss a patient’s medical or dental condition. As is required, this request is typically accompanied by an Arons authorization (also known as a speaking authorization) signed by the patient. The term comes from the New York case Arons v. Jutkowitz, in which the Court of Appeals ruled that attorneys may privately interview an adverse party’s treating physician when the adverse party has affirmatively placed their medical condition in controversy. A party places their medical condition in controversy by bringing a lawsuit alleging injuries, which waives their physician–patient privilege.

HIPAA safeguards require adherence to certain procedural steps when requesting an Arons interview. First, a HIPAA-compliant authorization must accompany a request for an Arons interview and must specifically permit the provider to speak with counsel regarding the medical condition at issue in the litigation. This type of authorization is different from the more common HIPAA authorization permitting the release of medical records. Second, attorneys conducting Arons interviews of non-party treating providers must reveal their client’s identity and interest (who they represent and their client’s interest in the litigation) and comport themselves ethically. Third, attorneys conducting Arons interviews must make it clear to the non-party treating provider being interviewed that the interview is entirely voluntary and limited in scope to the medical condition at issue in the litigation.

As a non-party provider, it is important to know that while counsel is permitted to request an Arons interview and the patient is required to provide an authorization when demanded, it does not compel treating providers to participate. Your participation in an Arons interview remains entirely voluntary.

If you are a MLMIC policyholder and you receive a request for Arons interview, we recommend that you call MLMIC Legal for assistance.  Do not call the attorney on the Arons request or attempt to resolve the issue on your own. Your policy coverage provides complimentary consultation with a MLMIC Legal Department attorney. The attorney will review the request, go over your options, and answer your questions. You will then be free to choose to participate in the interview or decline it. If you choose to participate in the interview, an attorney from MLMIC Legal will guide you through the process, protect your rights, limit your time away from your practice, and accompany you to the interview.

It is important that you understand your rights and never feel pressured into an interview or a topic when it is not in your best interests or covered by the HIPAA authorization. Call MLMIC Legal. We are here to help.

MLMIC policyholders can reach out to our healthcare attorneys for questions about how to respond to a non-party subpoena or any other healthcare law inquiries by calling (877) 426-9555 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (877) 426-9555 or by emailing hotline@tmglawny.com.

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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.

Sources:

  1. Arons v. Jutkowitz, 9 N.Y.3d 393 (2007).
  1. Id. at 400 (2007).
  2. Id.
  3. Id.
  4. Id.