Anker v. Brodnitz

In Anker v. Brodnitz (98 Misc. 2d 148, [Sup Ct, Queens County 1979] Supreme Court, Queens County, addressed whether medical malpractice defendants could privately interview a nonparty treating physician without court order or the patient's consent during pretrial discovery. Defendants argued that plaintiff waived any physician-patient privilege by commencing the action; therefore, private interviews were perfectly proper. The trial court disagreed. The Anker court explained that there was no relevant CPLR provision or court rule authorizing private interviews. The court emphasized that a "rule against . . . private interviews" will help ensure that only relevant medical information about a patient is disclosed and "will reduce unnecessary lawsuits for wrongful disclosure against doctors and insurers." (Id. at 153.) It further determined that to "permit private interviews upon the service of a complaint would subject physicians to improper pressures to disclose" and compliance "with formal discovery procedures would insulate a physician against such improper pressures." (Id. at 153.) The Appellate Division condemned ex parte interviews, and ratified the protocols regarding confidential communications set forth in the "Standards of Practice for Doctors and Lawyers" (adopted by both the New York State Bar Association and the Medical Society of the State of New York): "The attending physician must not give . . . oral reports . . . about a patient to attorneys, adjusters, or investigators representing parties whose interests are adverse to those of the patient without express written authorizations from the patient."