Case Study #8


The New York Court of Appeals Sides with Aaronson Rappaport

Clients: A major metropolitan teaching hospital and an attending surgeon.

Type of Case: Alleged improperly performed gastric banding surgery.

Background: Plaintiff alleged that after undergoing a gastric banding procedure to treat longstanding morbid obesity, she developed significant side effects, including severe and persistent nausea and vomiting, as well as malnutrition. In preparation for trial, defense counsel sought authorization from plaintiff to conduct ex parte interviews of two non-parties: a gastroenterologist who treated plaintiff after the surgery, and the surgeon who then reversed the first surgery. Plaintiff refused to provide the defense with the necessary authorizations, relying on HIPAA, the federal patient privacy law that became effective in 2003.

Suit Filed: The case was commenced in Supreme Court, Kings County (Brooklyn).

Client’s Concern: First, as the non-party physicians could offer valuable information about the plaintiff’s medical condition following the gastric banding surgery, it was crucial for the defense to interview them to fully prepare for trial. Second, since HIPAA went into effect, several trial courts throughout New York had taken varying positions on this legal issue — the ability of defense counsel to conduct ex parte interviews of non-party treating physicians. Trial strategy thus depended on the trial court assigned to the case.

Action Strategy: Aaronson Rappaport moved the trial court to compel plaintiff to provide authorizations permitting the defense to interview the two non-party physicians. The trial court granted the motion, but plaintiff appealed and the Appellate Division reversed. However, Aaronson Rappaport pursued the appeal and the New York Court of Appeals accepted the case for review.

Result: The New York Court of Appeals agreed with Aaronson Rappaport’s legal arguments, overturned the Appellate Division, and issued an extensive opinion that clarified and secured the ability of the defense to conduct ex parte interviews of non-party treating physicians.