What Types of Ex Parte Communications Are Permissible?

Ex parte communication with a plaintiff's treating physicians is a litigation tool that has long been utilized by defense counsel. Not surprisingly, plaintiffs have fought long and hard to prevent this type of informal discovery. Both plaintiffs and defendants have valid arguments for and against such ex parte communication. Plaintiffs, for instance, have privacy concerns regarding the dissemination of confidential medical information that is not relevant to the litigation. They also argue that ex parte communications undermine the confidentiality of the patient-physician relationship.

For defense counsel, the use of informal, ex parte interviews with a plaintiff's treating physician is an invaluable means of sizing up a physician's knowledge and opinions to determine whether it is actually necessary to depose him or her. Forcing defense counsel to conduct depositions of all the plaintiff's treating physicians would be costly and time-consuming. Also, in some states, plaintiffs waive the physician-patient privilege when plaintiffs file suits that put their medical conditions at issue. Since HIPAA was enacted, further debate has ensued regarding whether HIPAA preempts state laws allowing ex parte communication, and if so, whether HIPAA itself prohibits ex parte communication.