Changes You Need To Make To Your Arons Authorizations

In the summer of 2009, the Appellate Division, Second Department, explicitly approved the inclusion of warning language on Arons authorizations in Porcelli v. Northern Westchester Hospital Center, 65 A.D.3d 176, 882 N.Y.S.
2d 130 (2nd Dep’t 2009).

In Porcelli, the defendants’ counsel objected to the inclusion of an admonition on the Arons authorization that the ex parte interview with the plaintiff’s non-party treating physician was “solely to assist defense counsel at trial. The physician is not obligated to speak with defense counsel prior to trial. The interview is voluntary.” The challenged language on the authorization was set forth in bold-face type and highlighted in yellow by plaintiff’s counsel. Defendants’ counsel argued that the admonition on the authorization could intimidate healthcare providers and deter their cooperation with defendants’ counsel.

The Appellate Division in Porcelli held that the warning language on the authorization was “facially neutral”, “unlikely to chill the nonparty treating physicians’ decision to agree to an interview” and properly alerted the plaintiff’s nonparty treating physician that such an ex parte, informal meeting with defense counsel was voluntary and done in order to assist defense counsel at trial. The court stated: “On their face, the subject admonitions are unlikely to chill the nonparty treating physicians’ decision to agree to an interview, as they are facially neutral.”

The court in Porcelli further held that “the method the plaintiffs employed here–placing the admonition directly on the HIPAA-compliant authorizations and highlighting the language–is consistent with Arons, as it clearly serves the primary purpose of conveying the information in a manner that best prevents the accidential disclosure of privileged information. Arons does not require only defense counsel to be the messenger of such information.”

As stated by the court in Porcelli, your Arons authorizations may state in bold, highlighted letters that: (1) the purpose of the interview is to assist the defendants in the defense of the lawsuit, (2) that defense counsel are required to identify themselves and their interest and limit their inquiries to the condition at issue in the lawsuit, and (3) the non-party treating physician, or other healthcare provider, must be advised that they need not comply with the request for an interview.

Your Arons authorizations should contain the admonitions explicity approved by the Appellate Division in Porcelli.