Summary
In Fraylich, id., the court stated that "[w]e are in accord with the Second and Third Departments that the prohibition against the defendant in a medical malpractice action interviewing the plaintiff's treating physicians without a court order or the plaintiff's consent is limited to the pretrial stage."
Summary of this case from Carroll v. HarwinOpinion
June 25, 1998
Appeal from the Supreme Court, New York County (Karla Moskowitz, J.).
We are in accord with the Second and Third Departments that the prohibition against the defendant in a medical malpractice action interviewing the plaintiff's treating physicians without a court order or the plaintiff's consent is limited to the pretrial stage of the action (Zimmerman v. Jamaica Hosp., 143 A.D.2d 86, 88, lv denied 73 N.Y.2d 702; Tiborsky v. Martorella, 188 A.D.2d 795, 796-797), not the situation here, where the offending interview was conducted after the note of issue was filed. Nor are plaintiffs entitled to any documents defendants' attorney may have created relating to the interview, such being privileged as attorney work product (CPLR 3101 [c]; see, Corcoran v. Peat, Marwick, Mitchell Co., 151 A.D.2d 443, 445). That part of plaintiffs' motion as sought to compel defendants' attorney to identify the treating physicians with whom he has met was properly denied as moot in view of the attorney's affirmation that there was only one interview conducted with only the one physician who has been identified.
Concur — Sullivan, J. P., Ellerin, Williams, Tom and Mazzarelli, JJ.