Murphy v. Kaleida Health: Discoverability of ICU Staffing Records and Limits on Plaintiff Letters Undermining Arons Authorizations

I. Introduction

The Appellate Division, Fourth Department’s decision in Murphy v. Kaleida Health, 2025 NY Slip Op 06421 (Nov. 21, 2025), meaningfully develops two distinct but frequently litigated areas of New York civil practice:

• The scope of discovery of hospital staffing records in a medical malpractice case alleging negligent staffing; and
• The permissible content of a plaintiff’s communications with treating physicians after executing Arons-type HIPAA authorizations for defense counsel to conduct ex parte interviews.

On the discovery side, the Court holds that ICU staffing plans, schedules, and attendance records for the period of a plaintiff’s hospitalization are “material and necessary” under CPLR 3101(a) where the plaintiff has specifically alleged negligent staffing in the bill of particulars, and that a protective order shielding such records was an abuse of discretion. On the Arons side, the Court upholds a directive requiring the plaintiff to rescind letters to treating physicians that, in substance, asked them not to cooperate with defense counsel and suggested plaintiff had a right to attend ex parte interviews. The majority further holds that courts have subject-matter jurisdiction to address such letters even without proof that a physician actually received the letter or refused to cooperate; Justice Curran dissents on that point, characterizing the ruling as an impermissible advisory opinion.

Together, these rulings significantly affect how medical malpractice litigants in New York conduct discovery and how they may (and may not) communicate with treating physicians in the shadow of Arons v. Jutkowitz, 9 NY3d 393 (2007).

II. Factual and Procedural Background

A. The Underlying Medical Malpractice Claim

Plaintiff Jerry Murphy was admitted for 20 days in November 2017 to the intensive care unit (ICU) of Millard Fillmore Suburban Hospital, operated by Kaleida Health (the defendant). During that admission, Murphy allegedly developed a large pressure ulcer on his lower back.

In his medical malpractice action, Murphy alleged, among other things, that the hospital:

• Failed to provide a complete and proper physical examination;
• Failed to take appropriate steps to minimize the risk of developing pressure ulcers; and
• Failed to properly monitor him and his condition.

Initially, there were no express allegations in the bill of particulars about improper or inadequate staffing. That changed partway through discovery.

B. Discovery Dispute Over ICU Staffing Records

During discovery, plaintiff served demands seeking:

• The hospital’s ICU staffing plan;
• The ICU staffing schedule; and
• Attendance records (time records) for employees who worked in the ICU during November 2017.

Defendant objected, arguing that the demands were vague, overbroad, unduly burdensome, and not reasonably calculated to lead to relevant information. A key part of defendant’s objection was that there were “no allegations of improper staffing in the bill of particulars,” rendering the staffing information irrelevant to the pleaded claims.

In response, plaintiff served an amended bill of particulars (whose propriety was not challenged on appeal), adding allegations that defendant was negligent in:

“failing to properly hire, staff, train, educate, supervise and/or monitor its agents, servants, and/or employees, thereby exposing the Plaintiff to serious physical injuries.”

Four days after serving this amended bill of particulars, plaintiff moved to strike defendant’s answer based on its refusal to provide the staffing-related discovery. In the alternative, plaintiff sought “other appropriate relief,” which Supreme Court (Erie County, Sampson, A.J.) construed as including a motion to compel production of the staffing records.

C. The Arons Letter Dispute

Separately, defendant’s counsel sought “speaking authorizations” pursuant to Arons v. Jutkowitz, 9 NY3d 393 (2007), to conduct informal, ex parte interviews with plaintiff’s treating physicians. Plaintiff executed a HIPAA-compliant Arons authorization for his primary care physician.

Plaintiff then sent a letter to that primary care physician stating, among other things:

• He was “required to provide defense counsel with authorizations” permitting them to request an interview;
• The physician was under “no obligation” to speak to defense counsel;
• He “would prefer that you choose not to speak with them” because he wished to “protect the confidentiality of our physician-patient relationship”; and
• “Should you choose to disregard my request, I ask that you notify me of the date and time of your correspondence with defense counsel so that I may attend the interview.”

Plaintiff did not send a copy of this letter to defense counsel, but defendant “somehow learned” of its content. Defendant then cross-moved for, among other things:

• A protective order regarding the staffing records; and
• An order requiring plaintiff to rescind any litigation-related correspondence sent to treating providers from whom defense counsel had sought Arons authorizations.

Defendant argued that the letter was “nothing more than an improper attempt to undermine Arons and a defendant’s ability to defend itself by unduly prejudicing and interfering with [defendant’s] right to conduct ex parte interviews.”

D. Supreme Court’s Rulings and the Appeal

Supreme Court:

• Denied plaintiff’s motion in its entirety (thus neither striking the answer nor compelling the staffing discovery);
• Granted defendant a protective order as to the ICU staffing records; and
• Ordered plaintiff to send correspondence to his treating physicians rescinding all prior letters containing language the court deemed “confusing, misleading and/or intimidating.”

On appeal, the Fourth Department:

• Partly reversed and partly affirmed; and
• Issued a divided opinion (majority plus a partial dissent by Justice Curran).

III. Summary of the Appellate Division’s Decision

The Court’s holdings can be summarized as follows:

1. ICU staffing records are discoverable.
   The Court modified the order to:
   • Compel defendant to disclose its ICU staffing plan, staffing schedule, and attendance records for November 2017; and
   • Deny defendant’s request for a protective order as to those records.
   The Court held that these documents are “material and necessary” to plaintiff’s claims of negligent staffing and malpractice.
2. No striking of the answer.
   The Court agreed with Supreme Court that striking defendant’s answer was unwarranted because defendant’s noncompliance with discovery was not willful, contumacious, or in bad faith, especially given the timing of the amended bill of particulars.
3. Plaintiff’s Arons letter must be rescinded.
   The Court affirmed the order requiring plaintiff to send rescinding letters to treating physicians who had received letters with the challenged language. It held that plaintiff’s letter was indeed confusing, misleading, and intimidating, and that its clear purpose was to discourage cooperation with defense counsel, thereby impermissibly undermining Arons.
4. Justiciability and subject-matter jurisdiction.
   
   • The majority held that the dispute over plaintiff’s letter presented a justiciable controversy, not an advisory opinion problem, even though there was no evidence the physician had received the letter or refused to cooperate.
   • Justice Curran dissented in part, concluding that, absent proof of actual prejudice or effect, the court lacked subject-matter jurisdiction because defendant was effectively seeking an advisory opinion on the propriety of the letter.

IV. Analysis of the Discovery Ruling on ICU Staffing Records

A. Governing Framework: CPLR 3101 and “Material and Necessary”

CPLR 3101(a) mandates:

“[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.”

The Court of Appeals in Andon v 302–304 Mott St. Assoc., 94 NY2d 740, 746 (2000), emphasized that “material and necessary” is to be construed broadly, encompassing:

“any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.”

This standard is notably liberal; discovery is not limited to admissible evidence, but extends to information that may lead to relevant proof or sharpen the factual issues.

B. ICU Staffing Records as “Material and Necessary”

The majority held that Kaleida’s ICU staffing plan, staffing schedule, and time records for November 2017 are “material and necessary” because they directly bear on plaintiff’s newly pleaded allegations that defendant:

failed “to properly hire, staff, train, educate, supervise and/or monitor its agents, servants, and/or employees.”

The Court focused on:

• The number and type of medical personnel (doctors, nurses, physician assistants) who staffed the ICU during plaintiff’s admission; and
• Who was scheduled versus who actually worked those days.

Such information is obviously probative of whether the ICU was adequately staffed to provide the monitoring and care necessary to prevent or timely treat a pressure ulcer. It supports or undermines claims of systemic or episodic understaffing, which, in turn, may explain failures in examination, repositioning, skin checks, and observation.

The Court explicitly relied on Second Department precedent recognizing the relevance of staffing records when negligent staffing is alleged:

• Grant v PALJR, LLC, 64 AD3d 750, 751 (2d Dept 2009); and
• Parise v Good Samaritan Hosp., 36 AD3d 678, 680 (2d Dept 2007).

Those cases held that where plaintiffs assert negligent staffing or supervision, records identifying staffing levels and personnel on duty are discoverable. Murphy aligns the Fourth Department with that reasoning in the specific context of ICU staffing in a medical malpractice action.

C. Rejection of the Protective Order and the “Patient Census” Rationale

Supreme Court granted a protective order in part because, in its view, “without the patient census, which has not been requested, the staffing records are meaningless.” The Fourth Department rejected that premise.

The majority reasoned:

• There was no indication that plaintiff could not otherwise know or learn how many other patients were in the ICU with him, possibly obviating the need for a formal census request; and
• In any event, the note of issue had not yet been filed, so plaintiff remained free to request a patient census before discovery closed.

Crucially, the Court did not make the discoverability of staffing records conditional on a simultaneous or prior request for a patient census. Even if a census might make the staffing records more analytically useful, the absence of a census does not render those records irrelevant or justify a protective order.

By holding that Supreme Court “abused its discretion” in issuing the protective order, the Court implicitly applies the standard governing protective orders under CPLR 3103: such orders should be reserved for preventing unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice—not for denying plainly relevant information because it might require additional context.

D. No Basis to Strike the Answer

Plaintiff also sought the drastic remedy of striking the answer due to defendant’s discovery noncompliance. The Court rejected that request, agreeing with Supreme Court.

Under Fourth Department precedent such as Harms v TLC Health Network, 215 AD3d 1295, 1296 (4th Dept 2023), striking a pleading is appropriate only where a party’s noncompliance is:

• Willful;
• Contumacious; or
• In bad faith.

Here, the Court found no such showing. It highlighted the timing: plaintiff moved to strike only four days after serving the amended bill of particulars that first expressly raised negligent staffing. Against that backdrop, defendant’s insistence on relevance objections—even if incorrect—did not amount to willful or contumacious conduct warranting the ultimate sanction.

The message is twofold:

• Courts will readily compel production of relevant staffing records once negligent staffing is pleaded; but
• They will not automatically punish earlier resistance with dispositive sanctions, especially where the scope of the claims was evolving and the defendant’s position was at least colorable.

V. Analysis of the Arons Letter Ruling

A. The Arons Regime: Informal Interviews Within HIPAA’s Constraints

Before HIPAA, New York practice allowed defendants’ attorneys to conduct post-note-of-issue ex parte interviews with treating physicians in cases where the plaintiff had waived the physician–patient privilege by putting their medical condition at issue (see generally Koump v Smith, 25 NY2d 287, 293 (1969)).

The enactment of HIPAA and its implementing Privacy Rule (45 CFR pts 160, 164), discussed in Matter of Miguel M. [Barron], 17 NY3d 37, 41–42 (2011), complicated that practice. HIPAA generally forbids disclosure of protected health information without patient authorization.

Arons v Jutkowitz, 9 NY3d 393 (2007), reconciled New York practice with HIPAA by holding that:

• Defense counsel may conduct informal, ex parte interviews with treating physicians; but
• Only after obtaining HIPAA-compliant authorizations executed by the plaintiff; and
• Even with an authorization, physicians have no obligation to speak—they remain free to refuse.

Following Arons, the Office of Court Administration (OCA) adopted a standard “Arons authorization” form. The Fourth Department in Sims v Reyes, 195 AD3d 133 (4th Dept 2021), emphasized adherence to that standard, and approved a trial court’s order compelling a plaintiff to execute revised authorizations consistent with the OCA form.

B. Plaintiff’s Letter and Defendant’s Objections

In Murphy, the dispute did not concern the language of the HIPAA authorization itself, but a separate letter plaintiff sent to his primary care physician about the authorization and potential interview. The letter:

• Accurately noted that the physician was not legally obligated to speak with defense counsel;
• Stated plaintiff’s preference that the physician not speak with them;
• Expressed a desire to “protect the confidentiality” of the physician–patient relationship; and
• Requested that, if the physician “disregard[ed]” that request, the physician should notify plaintiff so that he could attend the interview.

Defendant argued that this was an improper attempt to:

• Discourage treating physicians from participating in the very ex parte interviews that Arons authorizes; and
• Impose conditions (such as plaintiff’s presence) inconsistent with the ex parte nature of such interviews.

Defendant sought an order requiring plaintiff to rescind this and similar letters sent to other providers from whom defendant had requested speaking authorizations.

C. Majority’s Legal Reasoning

1. The Letter’s Purpose: Discouraging Cooperation

The majority agreed with Supreme Court that the letter was “clearly intended to discourage” the physician from speaking informally to defense counsel. It upheld the characterization of key phrases as:

• Confusing – particularly the suggestion that plaintiff still sought to protect confidentiality despite having executed a HIPAA authorization;
• Misleading – potentially signaling that the physician–patient privilege and HIPAA privacy rights remained intact as to the subject matter of the litigation; and
• Intimidating – notably the phrase “Should you choose to disregard my request,” implying a moral or relational reproach if the physician chose to cooperate.

2. Extending Sims to Plaintiff Letters

In Sims, the dispute centered on language in the authorization itself that stated:

“If you decide to meet with their lawyers, I would ask that you let me know, because I would like the opportunity to be present or to have my attorneys present.”

The Fourth Department held in Sims that such language, absent from OCA’s standard form, was improper and could be stricken by requiring execution of revised, standard-form authorizations.

In Murphy, plaintiff’s letter contained almost the same request:

“Should you choose to disregard my request [not to speak with defense counsel], I ask that you notify me of the date and time of your correspondence with defense counsel so that I may attend the interview.”

The majority reasoned that there is “no reason for allowing plaintiff to include language in his letter that is prohibited in an authorization.” The core principle: plaintiffs cannot do indirectly—through side letters—what they are forbidden to do directly in the Arons authorization itself.

3. Prohibition on Requesting Non-Cooperation After Signing an Authorization

The majority addressed directly the notion, raised by trial-level authority in Charlap v Khan, 41 Misc 3d 1070 (Sup Ct, Erie County 2013), that a plaintiff might be permitted to express a “preference” that a physician not speak to defense counsel.

Even assuming (for argument’s sake) that such a mere “preference” could be stated, the Court drew a sharper line here:

“In our view, a plaintiff who signs an authorization allowing a treating physician to speak to defense counsel about the plaintiff’s medical condition at issue should not be allowed to send a letter separately to the same physician requesting that the physician not speak to defense counsel.”

Key points:

• The Court focuses on the combination of:
  • Executing an authorization that permits the physician to speak; and
  • Sending a separate communication that actively discourages speaking.
• Such a letter “would undermine the purpose of the Arons authorization” and, at minimum, confuse the physician as to what the patient actually wants and what the law permits.

The Court also noted that plaintiff’s statement—“I value and wish to protect the confidentiality of our physician-patient relationship”—could reasonably lead the physician to believe that, despite the authorization, confidentiality and HIPAA privacy protections remain fully intact, which is inconsistent with the waiver inherent in the executed authorization.

4. No Plaintiff Right to Attend Ex Parte Interviews

The majority emphasized a structural feature of Arons: the interviews contemplated are ex parte—i.e., private conversations between the physician and defense counsel without plaintiff’s presence.

The Court clarified:

• A defendant’s attorney has no right to an informal interview; the physician may refuse.
• Likewise, a plaintiff has no right to attend any such informal interview. Plaintiff may ask the physician for permission to attend, but cannot create the impression that attendance is a legal entitlement or condition of cooperation.
• A physician may insist on plaintiff’s presence, but that is solely the physician’s choice.

By suggesting that the physician should notify plaintiff of the date and time so that plaintiff may attend, the letter risked implying that plaintiff’s attendance was expected or required if the physician chose to cooperate. That runs contrary to Arons, which envisioned truly private, informal interviews as a preferred, efficient alternative to depositions.

5. Justiciability: Why the Court Rejected the “Advisory Opinion” Argument

A critical part of the majority’s reasoning concerns subject-matter jurisdiction. Justice Curran’s dissent (discussed below) argued that, because there was no evidence the physician:

• Received the letter; or
• Declined an interview due to the letter,

the dispute was speculative and sought an advisory opinion on the language of the letter.

The majority disagreed, holding:

• The controversy was over an event that already occurred: plaintiff’s sending of a letter with clearly discouraging content.
• Courts are not required to wait until a physician actually refuses to cooperate—possibly for undisclosed reasons—before addressing the lawfulness of such a letter.
• Requiring proof that a physician was in fact dissuaded would “set the bar too high” and undermine Arons, because defendants would:
  • Often have no way to know the reason for a physician’s refusal; and
  • Be forced to conduct formal depositions simply to discover why ex parte interviews were refused—precisely the inefficiency Arons sought to avoid.

The majority therefore viewed the matter as a live, justiciable dispute about whether plaintiff’s actually-sent letter was improper, not a request to opine on hypothetical future events.

D. The Dissent’s View: Advisory Opinion and Lack of Subject-Matter Jurisdiction

Justice Curran concurred with the majority’s discovery rulings but dissented from the portion of the order upholding the rescission requirement for the Arons letter. His reasoning is anchored in New York’s well-established prohibition on advisory opinions.

Citing classic authorities such as:

• Cuomo v Long Is. Light Co., 71 NY2d 349, 354 (1988);
• New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531 (1977);
• Self-Insurer’s Assn. v State Indus. Commn., 224 NY 13, 16 (1918, Cardozo, J.);
• Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12 (2008); and
• Matter of Fry v Village of Tarrytown, 89 NY2d 714 (1997),

the dissent stressed:

• New York courts “do not issue advisory opinions” because that is not an exercise of the judicial function;
• An action cannot be maintained when it turns on a future event beyond the parties’ control that may never occur; and
• Subject-matter jurisdiction cannot be conferred by consent and may be raised at any stage.

Applying these principles, Justice Curran noted:

• There was no record evidence the provider even received the letter;
• There was no evidence defendant attempted to schedule an interview, much less that the provider refused one;
• Defendant did not argue—and the majority did not hold—that the letter constituted a revocation of the HIPAA authorization; and
• Defendant’s cross-motion framed the letter as an “attempt” to undermine Arons, underscoring the speculative nature of any harm.

On that basis, the dissent characterized defendant’s request as seeking nothing more than a judicial reaction to hypothetical consequences of the letter. Because “the mere sending of the letter in itself does not cause any harm to defendant,” and defendant did not show it was in a worse position than before, Justice Curran would have held that the court lacked subject-matter jurisdiction and should have denied that part of the cross-motion.

He also criticized the majority for issuing what he viewed as “advisory commentary premised on speculation,” noting that litigation over the letter had “undoubtedly delayed the underlying medical malpractice action—all to no perceptible effect.”

E. Reconciling Majority and Dissent: Practical Boundaries

The split highlights an important and still-evolving question in New York practice: how early, and on what evidentiary showing, may courts intervene to police litigation-related communications with treating physicians?

Under the majority’s approach:

• The mere fact that a plaintiff has sent a letter, the content of which is evidently designed to discourage cooperation and to inject conditions inconsistent with Arons, is enough to create a justiciable controversy;
• No additional showing of actual prejudice (doctor’s receipt or refusal) is required to support an order requiring rescission; and
• This approach is justified in part by the need to preserve Arons’ preference for informal, ex parte interviews over formal depositions.

Under Justice Curran’s view:

• Without evidence that the letter has had any concrete effect, judicial intervention amounts to an impermissible advisory opinion;
• Courts should not expend resources adjudicating the legality of “mere” letters whose real-world effects are unknown and may never materialize;
• The defendant must show some injury in fact or aggrievement—e.g., a refused interview traceable to the letter—to invoke the court’s power.

For practitioners, the majority’s holding is binding in the Fourth Department unless and until modified by the Court of Appeals. It signals that courts may proactively scrutinize and, where necessary, nullify plaintiff communications that are inconsistent with executed Arons authorizations, without waiting for evidence of actual prejudice.

VI. Precedents Cited and Their Role in the Decision

A. Discovery and “Material and Necessary”

• Andon v 302–304 Mott St. Assoc., 94 NY2d 740 (2000)
  Cited for the liberal construction of CPLR 3101(a) and the “usefulness and reason” test. It underpins the conclusion that ICU staffing records, though not dispositive by themselves, are discoverable because they will assist in trial preparation and issue-sharpening.
• Grant v PALJR, LLC, 64 AD3d 750 (2d Dept 2009) and Parise v Good Samaritan Hosp., 36 AD3d 678 (2d Dept 2007)
  Both Second Department cases confirm that staffing and personnel records are discoverable when negligent staffing or supervision is pleaded. Murphy follows that line, extending it explicitly to ICU staffing in a med-mal context.

B. Sanctions and Striking Pleadings

• Harms v TLC Health Network, 215 AD3d 1295 (4th Dept 2023)
  Cited for the principle that striking a pleading is reserved for willful, contumacious, or bad-faith discovery misconduct. It supports the refusal to strike Kaleida’s answer despite its unsuccessful resistance to the staffing discovery.

C. HIPAA, Privilege, and Arons Interviews

• Koump v Smith, 25 NY2d 287 (1969)
  Establishes that a party who affirmatively puts their medical condition at issue generally waives the physician–patient privilege as to that condition. Forms part of the pre-HIPAA backdrop for informal interviews.
• Matter of Miguel M. [Barron], 17 NY3d 37 (2011)
  Explains that HIPAA’s Privacy Rule prohibits disclosure of protected health information without authorization. Sets the stage for why HIPAA-compliant authorizations are now necessary for ex parte interviews.
• Arons v Jutkowitz, 9 NY3d 393 (2007)
  The foundational case authorizing ex parte interviews with treating physicians when supported by HIPAA-compliant authorizations. Murphy is expressly framed as protecting Arons’ core holding against attempts to undermine it by discouraging letters.
• Sims v Reyes, 195 AD3d 133 (4th Dept 2021)
  Establishes the Fourth Department’s insistence on OCA’s standard Arons authorization form and disapproves extra language asking for notice and opportunity for plaintiff or counsel to attend interviews. Murphy extends this reasoning to similar language in separate letters to physicians.
• Charlap v Khan, 41 Misc 3d 1070 (Sup Ct, Erie County 2013)
  A trial-level case suggesting that a plaintiff may express a preference that a physician not speak to defense counsel. Murphy distinguishes and effectively limits this view by holding that, once an authorization is signed, a separate request that the physician not speak is improper.

D. Justiciability and Advisory Opinions

• New York Pub. Interest Research Group v Carey, 42 NY2d 527 (1977) and Cuomo v Long Is. Light Co., 71 NY2d 349 (1988)
  Both articulate the prohibition on advisory opinions and the requirement of a real controversy, not contingent on future events that may never occur. These cases are central to Justice Curran’s dissent and are addressed by the majority in rejecting the advisory-opinion argument.
• Matter of Fossella v Dinkins, 66 NY2d 162 (1985)
  Cited by the majority for the general principle that a controversy is justiciable when it involves an existing dispute affecting the parties’ rights. Supports the majority’s view that plaintiff’s act of sending the letter itself creates a sufficient dispute.
• Self-Insurer’s Assn. v State Indus. Commn., 224 NY 13 (1918), Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12 (2008), Matter of Fry v Village of Tarrytown, 89 NY2d 714 (1997), County of Monroe v City of Rochester, 39 AD3d 1272 (4th Dept 2007), Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82 v Cuomo, 64 NY2d 233 (1984), Board of Educ. of Palmyra-Macedon Cent. Sch. Dist. v Flower City Glass Co., Inc., 160 AD3d 1497 (4th Dept 2018)
  These authorities, marshaled largely by Justice Curran, reinforce that subject-matter jurisdiction cannot be waived and that courts must avoid adjudicating hypothetical or contingent disputes.

VII. Complex Concepts Explained

A. Bill of Particulars and Amended Bill of Particulars

In New York practice, a bill of particulars amplifies the complaint by specifying the acts or omissions that allegedly constitute negligence or other wrongful conduct. It functions as a roadmap of the plaintiff’s theories and factual claims.

An amended bill of particulars can add or clarify allegations—here, the express claim that defendant failed properly to hire and staff the ICU. Because discovery relevance is judged largely against the issues framed by the pleadings and the bill of particulars, amending the bill to allege negligent staffing opened the door to discovery of staffing-related documents.

B. Protective Orders and the Note of Issue

A protective order (CPLR 3103) allows the court to limit or forbid discovery to prevent “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.” It is a safeguard against abusive or unnecessary discovery demands.

The note of issue is filed when a party certifies that discovery is complete and the case is ready for trial. After a note of issue is filed, further discovery is restricted and typically requires court permission. In Murphy, the fact that the note of issue had not yet been filed meant plaintiff still had an opportunity to serve additional discovery demands (e.g., for a patient census).

C. Ex Parte Interviews vs. Depositions

An ex parte interview in this context is a private, informal conversation between defense counsel and a treating physician, conducted outside the presence of plaintiff or plaintiff’s counsel and not under oath. It is voluntary; the physician may cooperate or decline.

A deposition is a formal, recorded examination under oath, usually with all parties and counsel present, governed by procedural rules, and typically transcribed by a court reporter. Depositions are more expensive and time-consuming than informal interviews.

Arons expresses a preference for informal ex parte interviews as an efficient discovery tool, to be used when the plaintiff has authorized disclosure through a HIPAA-compliant authorization.

D. HIPAA, Physician–Patient Privilege, and Waiver

The physician–patient privilege in New York generally protects confidential communications between a patient and medical provider. However, when a plaintiff affirmatively puts their medical condition in issue (e.g., by suing for personal injuries), that privilege is waived as to the relevant condition (see Koump v Smith).

HIPAA adds a federal overlay: it prohibits covered entities (like physicians and hospitals) from disclosing protected health information without patient authorization or a specific legal exception. Thus, even where state privilege is waived for litigation, HIPAA may still bar disclosure absent a valid authorization.

An Arons authorization is a HIPAA-compliant form by which the plaintiff authorizes treating physicians to speak with defense counsel about the plaintiff’s medical condition at issue in the lawsuit. Execution of such an authorization is not, by itself, a guarantee that physicians will speak, but it removes HIPAA as a legal barrier to such ex parte interviews.

E. Subject-Matter Jurisdiction and Advisory Opinions

Subject-matter jurisdiction refers to a court’s power to hear and decide a particular category of dispute. It cannot be created by agreement of the parties and can be raised at any stage of litigation.

New York courts do not issue advisory opinions, meaning judicial statements about hypothetical or future events that may never occur and that resolve no concrete dispute. Courts require a real, present controversy with actual stakes for the parties.

The difference between a justiciable case and an advisory opinion often turns on whether:

• There is an existing action or event affecting the parties’ legal rights; and
• The court’s decision will have an immediate, practical effect, rather than merely opining on what the law would be under hypothetical circumstances.

In Murphy, the majority and dissent part ways on whether plaintiff’s letter—without proof of its receipt or effect—crosses that line.

VIII. Practical Impact and Future Implications

A. For Medical Malpractice Plaintiffs and Their Counsel

1. Pleading negligent staffing to unlock staffing discovery.
   Murphy underscores the value of expressly alleging negligent hiring, staffing, training, supervision, and monitoring in the bill of particulars when systemic understaffing is plausibly at issue (e.g., pressure ulcer, falls, failure-to-monitor cases). Such allegations can support discovery of:
   • Staffing plans and schedules;
   • Attendance/time records; and
   • Potentially related institutional policies (subject to future litigation).
2. Caution in communications with treating physicians after Arons authorizations.
   Once a plaintiff executes a HIPAA-compliant Arons authorization for a provider, Murphy indicates the plaintiff:
   • May not send a separate letter requesting that the physician decline to speak with defense counsel;
   • Should avoid language that suggests plaintiff has a right to attend ex parte interviews or that such attendance is expected; and
   • Should avoid statements that could confuse the physician about whether confidentiality/privilege has in fact been waived for the subject matter of the lawsuit.
   Informing a physician that cooperation is voluntary is not itself condemned in the opinion, but inserting discouraging or conditional language is fraught post-Murphy.
3. Anticipating challenges to Arons-related communications.
   Defense counsel can now cite Murphy to seek early court intervention when they learn of letters or communications that may undermine Arons interviews. Plaintiffs should draft any communications to treating providers with the assumption they may be judicially scrutinized.

B. For Hospitals and Defense Counsel

1. Expect broader discovery into staffing practices.
   Where plaintiffs allege negligent staffing in the bill of particulars, defendants in the Fourth Department should expect to produce:
   • Unit-specific staffing plans;
   • Schedules;
   • Attendance records for the relevant period.
   Objections premised solely on burden or alleged irrelevance are unlikely to be sustained when the discovery is narrowly tailored to the time and location of the plaintiff’s care.
2. Use Murphy to police improper Arons letters.
   If defense counsel learns of plaintiff letters that:
   • Discourage cooperation;
   • Condition cooperation on plaintiff’s presence; or
   • Confuse the physician about confidentiality or waivers,
   Murphy supports moving for an order compelling rescission, without needing to first prove that any physician has actually refused an interview because of the letter.
3. Structure discovery planning with Andon’s “usefulness and reason” in mind.
   The case reinforces that courts will favor broad, pragmatic discovery. Where defendants resist on relevance grounds, they should be prepared to articulate concrete reasons why requested records lack any reasonable usefulness to the claims or defenses.

C. For Trial Courts Managing Arons Disputes

Murphy provides appellate-level support for trial courts to:

• Scrutinize not just the wording of HIPAA authorizations, but also side communications that may undermine the Arons framework;
• Order rescission of confusing, misleading, or intimidating letters even in the absence of proof of actual prejudice; and
• Ground such orders in the need to preserve the efficiency and integrity of informal ex parte interviews endorsed in Arons.

At the same time, the dissent highlights a countervailing concern: that such intervention risks turning courts into general censors of litigants’ communications, potentially enlarging judicial power beyond concrete disputes and delaying underlying merits adjudication. Trial courts should therefore:

• Limit such orders to communications whose discouraging or confusing purpose is clear on their face; and
• Be cautious about venturing into hypothetical harms or speculative future effects when the content is more equivocal.

D. Potential Areas of Future Litigation

Several questions remain open for future appellate clarification:

• How far may a plaintiff go in advising physicians of their rights?
  Murphy condemns certain “discouraging” and conditional language, but does not squarely address whether a neutral notice that cooperation is voluntary is permissible post-authorization. Trial courts may draw different lines on this point.
• Scope of discoverable staffing information.
  Murphy involves a discrete, month-long ICU admission. How courts handle broader or longer-term staffing discovery requests (e.g., months or years of records to show systemic understaffing) remains to be seen and will likely turn on proportionality and burden arguments.
• Interplay with Charlap and similar trial-level decisions.
  To the extent Charlap permitted plaintiffs to express a preference that physicians decline interviews, Murphy calls that approach into question—at least in the Fourth Department and at least once an Arons authorization has been executed.
• Higher-court review of the advisory-opinion issue.
  The division between the majority and Justice Curran raises a pure jurisdictional question that the Court of Appeals could, in a future case, address directly: how much “effect” must be shown before courts may order rescission of Arons-related letters?

IX. Conclusion

Murphy v. Kaleida Health is significant for two distinct reasons.

First, it reinforces and extends a liberal approach to discovery in medical malpractice litigation: once negligent staffing is properly pleaded, hospital staffing plans, schedules, and time records for the relevant unit and period are “material and necessary” and generally discoverable. Courts should be reluctant to shield such records absent a compelling showing under CPLR 3103, and trial-level efforts to dismiss them as “meaningless” without additional context (such as a patient census) are disfavored.

Second, the decision tightens the permissible boundaries of plaintiff communications with treating physicians in the post-Arons landscape. A plaintiff who executes HIPAA-compliant Arons authorizations may not undermine them by separately requesting that treating physicians decline interviews or by implying a right to attend ex parte interviews. Even absent proof that such a letter has actually deterred cooperation, courts may, at least in the Fourth Department, treat such communications as confusing, misleading, or intimidating and order their rescission to protect the integrity of Arons-authorized discovery.

The partial dissent underscores enduring tensions between efficient discovery, party autonomy in communicating with witnesses, and the limits of judicial power under New York’s prohibition on advisory opinions. Until further guidance from higher courts, however, Murphy stands as an important precedent shaping both the evidentiary foundation of negligent-staffing claims and the procedural conduct of Arons interviews in New York medical malpractice litigation.