The Unique and Crucial Role of the Non-Party Physician

Physicians who have treated a plaintiff before ' during or after the treatment at issue ' often have a unique perspective that can be helpful at trial to the finder of fact. How can such non-party treating physicians be identified, interviewed, and brought to the assistance of the litigants in their search for the truth?

This Evidence May Be Key

Non-party treating physicians are frequently unaware that a patient has brought a medical malpractice action, and that the patient is litigating issues involving his or her physical condition. Hospital records, and even the doctor's office records, may have been secured by parties to the litigation without the know-ledge of the treating physician, who does not participate in that aspect of medical record management.

Physicians' records must generally be preserved for a number of years, by custom or pursuant to law, and can furnish an accurate record of the various aspects of the plaintiff's injuries or disability. The patient who is consulting with a non-party treating physician presumably reports symptoms, history, and treatment outcome in a correct and truthful fashion that is oriented toward addressing the patient's particular medical complaints. As a result, there is likely to be a contemporaneous and accurate record of the plaintiff's complaints, history, interventions, and outcome that is unaffected by the ongoing litigation ' and which is helpful to one or more litigating parties well after the fact.

The potential assistance such evidence can provide to litigants is nearly unbouded, extending to any aspect of liability, causation, or damages. From the plaintiff's perspective, the records may confirm the extent of the injuries alleged, thereby supporting a claim for lost earnings as well as pain and suffering, and facilitating a more favorable settlement. From the defendant's point of view, records of non-party treating physicians may reveal a pre-existing condition, or support an argument that the plaintiff is exaggerating the extent of his or her injuries. In almost any case, the carefully documented records of both prior and subsequent care can give insight into the extent and trajectory of prior disability or underlying disease, and the treating physician may be in the best possible position to give sound evidence on the prognosis of the particular patient, the residual effects of the injury or condition given the patient's other medical issues, and the extent of any lasting disability.

Let's take the example of a case involving allegations of birth-related neurological injuries. If the records of subsequent treating pediatricians contain referrals to geneticists and other specialists, that evidence might support an argument that the child's condition is congenital in origin, and was unrelated to the delivery or the prior obstetrical care. Similarly, in a case where the plaintiff complains of intractable pain and limitation of movement following spinal surgery, the records of a prior treating physician may reveal that the plaintiff made essentially the same complaints when seeking treatment for injuries sustained in an automobile accident five years earlier.

Contemporaneous records of treatment may also yield valuable insight concerning the standard of care that is not tinged by retrospective “expert” analysis. Where there is an issue as to the extent of treatment, monitoring, therapy, or assistance needed as a consequence of an injury or condition, what better way to find the truth than to see what the physician responsible for the litigant's care recommended to a compliant patient whose objective was to regain good health? Imagine the benefit to the defense if the treatment prescribed and recommendations made to the patient by the non-party physician were essentially the same as those of the defendant doctor; or if the non-party prescribed the same medication that the plaintiff contends the defendant should not have ordered!

Identifying Non-Party Physician Witnesses

Identifying the treating non-party physician who is in a position to provide supporting evidence can be difficult. Valuable evidence may be obscured by patient confidentiality, handwriting and record-keeping issues, as well as by poor patient recollection of past treatment and complex medicine. Thus, a careful approach to discovery is required. The search expands from the records of treatment for the injury that is the subject of the lawsuit, and may not end before thousands of pages of hospital and medical records have been secured and carefully reviewed.

Since the scope of discovery is more comprehensive than the scope of admissible evidence at trial, both plaintiff and defendant are obligated to search out any record of medical care that could reasonably lead to admissible evidence. No attorney or judge should presume to know that a record yet to be secured or reviewed will not lead to important and necessary evidence. For example, in the case of Zydel v. Manges, 83 AD2d 987 (4th Dept. 1981), where the plaintiff claimed a permanent neurological injury as a result of a motor vehicle accident, the court held that the possible effects of the plaintiff's chronic alcoholism might well be relevant; accordingly, the court required the disclosure of the plaintiff's records from a subsequent hospital admission for treatment of alcoholism.

Life insurance applications, job applications, pharmacy records, employment physical examination reports and other ancillary records have often led to the discovery of highly relevant records of other injuries, or even ostensibly unrelated medical conditions that still may be relevant to issues of damages, prognosis, disability, or life expectancy. In an example based on an actual case, a careful search of pharmacy records revealed that the plaintiff, who alleged that the defendant had failed to diagnose and treat seizures, had previously been prescribed seizure medication by a different physician.

In short, the attorney who restricts or allows others to restrict the scope of record discovery may be creating problems for the trial court and jury when the case is tried, and depriving one or more of the parties of effective representation by counsel.

Ex Parte Interviews

From the defense perspective, in addition to the records of treatment, informal interviews of non-party treating physicians may yield particularly valuable information. Whether and to what extent such interviews are available depends on the law of the particular jurisdiction regarding the waiver of the physician-patient privilege, and on how the courts of that jurisdiction interpret the requirements of the federal HIPAA privacy law (Health Insurance Portability and Accountability Act, 42 USC 1320d et seq.).

In Arons v. Jutkowitz, 9 NY3d 393 (2007), the New York Court of Appeals held that an attorney may privately interview an adverse party's treating physician when the adverse party has placed his or her medical condition in controversy, and that the adverse party may be compelled to provide HIPAA-compliant authorizations permitting such interviews. Similarly, in Holman v. Rasak, 785 N.W.2d 98, 486 Mich. 429 (2010), the Supreme Court of Michigan held that ex parte interviews, which are permitted under Michigan law, are also consistent with HIPAA regulations, provided that “reasonable efforts have been made ' to secure a qualified protective order” that meets the requirements of the applicable regulations. (The Holman court noted that a “qualified protective order” is one that “(A) [p]rohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and (B) [r]equires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. [45 CFR 164.512(e)(1)(v).]“.)

The Supreme Court of Georgia, likewise, has held that defense counsel may apply for qualified protective orders, limited to the relevant medical condition, to allow interviews. Baker v. Wellstar Health System Inc., 703 S.E.2d 601 (2010). Tennessee, on the other hand, prohibits ex parte interviews. Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722 (Tenn. 2006); see also Jacobs v. Nashville Ear, Nose & Throat Clinic, 2010 Tenn. App. LEXIS 448 (Tenn. Ct. App. July 15, 2010). But, according to Alsip, plaintiffs' counsel may consent to informal interviews of a non-party treating physician if both counsel are present. In Florida, ex parte interviews are prohibited by a strictly construed statute stating that medical providers may not discuss “the medical condition of a patient.” Fla. Stat. ' 456.057(7a), (8).

In those jurisdictions where ex parte interviews are permitted, obtaining appropriate HIPAA-compliant authorizations or qualified protective orders in discovery is an important task, because all too frequently a treating physician has not recorded all that is important, has made records in shorthand or handwriting that defies interpretation, or has not provided a complete copy of the patient's chart when it was requested. It may be, for example, that defense counsel has not been provided with correspondence from the patient or from consulting physicians that is contained in the office chart. If ex parte interviews are left to the trial preparation phase, it may be too late to follow up in important areas, and the attorney may be committed to a trial strategy that is based on erroneous or incomplete information.

It can be a challenge to explain to the non-party treating physician that a HIPAA-compliant authorization or qualified protective order does in fact permit him or her to speak to an attorney who does not represent the physician's patient. Yet, however difficult it may be, in the appropriate case it is the obligation of the attorneys to follow up on their efforts to secure the information needed. The interview does not need to be formal, or even conducted in person, and can be limited to obtaining answers from the witness that have been submitted in writing prior to the interview.

Next month we will look at issues surrounding the deposition of non-party physicians and the taking of trial testimony.

John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg, a member of this newsletter's Board of Editors, is a partner practicing in the firm's New York office, where she is head of the firm's Appellate Department.

Physicians who have treated a plaintiff before ' during or after the treatment at issue ' often have a unique perspective that can be helpful at trial to the finder of fact. How can such non-party treating physicians be identified, interviewed, and brought to the assistance of the litigants in their search for the truth?

This Evidence May Be Key

Non-party treating physicians are frequently unaware that a patient has brought a medical malpractice action, and that the patient is litigating issues involving his or her physical condition. Hospital records, and even the doctor's office records, may have been secured by parties to the litigation without the know-ledge of the treating physician, who does not participate in that aspect of medical record management.

Physicians' records must generally be preserved for a number of years, by custom or pursuant to law, and can furnish an accurate record of the various aspects of the plaintiff's injuries or disability. The patient who is consulting with a non-party treating physician presumably reports symptoms, history, and treatment outcome in a correct and truthful fashion that is oriented toward addressing the patient's particular medical complaints. As a result, there is likely to be a contemporaneous and accurate record of the plaintiff's complaints, history, interventions, and outcome that is unaffected by the ongoing litigation ' and which is helpful to one or more litigating parties well after the fact.

The potential assistance such evidence can provide to litigants is nearly unbouded, extending to any aspect of liability, causation, or damages. From the plaintiff's perspective, the records may confirm the extent of the injuries alleged, thereby supporting a claim for lost earnings as well as pain and suffering, and facilitating a more favorable settlement. From the defendant's point of view, records of non-party treating physicians may reveal a pre-existing condition, or support an argument that the plaintiff is exaggerating the extent of his or her injuries. In almost any case, the carefully documented records of both prior and subsequent care can give insight into the extent and trajectory of prior disability or underlying disease, and the treating physician may be in the best possible position to give sound evidence on the prognosis of the particular patient, the residual effects of the injury or condition given the patient's other medical issues, and the extent of any lasting disability.

Let's take the example of a case involving allegations of birth-related neurological injuries. If the records of subsequent treating pediatricians contain referrals to geneticists and other specialists, that evidence might support an argument that the child's condition is congenital in origin, and was unrelated to the delivery or the prior obstetrical care. Similarly, in a case where the plaintiff complains of intractable pain and limitation of movement following spinal surgery, the records of a prior treating physician may reveal that the plaintiff made essentially the same complaints when seeking treatment for injuries sustained in an automobile accident five years earlier.

Contemporaneous records of treatment may also yield valuable insight concerning the standard of care that is not tinged by retrospective “expert” analysis. Where there is an issue as to the extent of treatment, monitoring, therapy, or assistance needed as a consequence of an injury or condition, what better way to find the truth than to see what the physician responsible for the litigant's care recommended to a compliant patient whose objective was to regain good health? Imagine the benefit to the defense if the treatment prescribed and recommendations made to the patient by the non-party physician were essentially the same as those of the defendant doctor; or if the non-party prescribed the same medication that the plaintiff contends the defendant should not have ordered!

Identifying Non-Party Physician Witnesses

Identifying the treating non-party physician who is in a position to provide supporting evidence can be difficult. Valuable evidence may be obscured by patient confidentiality, handwriting and record-keeping issues, as well as by poor patient recollection of past treatment and complex medicine. Thus, a careful approach to discovery is required. The search expands from the records of treatment for the injury that is the subject of the lawsuit, and may not end before thousands of pages of hospital and medical records have been secured and carefully reviewed.

Since the scope of discovery is more comprehensive than the scope of admissible evidence at trial, both plaintiff and defendant are obligated to search out any record of medical care that could reasonably lead to admissible evidence. No attorney or judge should presume to know that a record yet to be secured or reviewed will not lead to important and necessary evidence. For example, in the case of Zydel v. Manges , 83 AD2d 987 (4th Dept. 1981), where the plaintiff claimed a permanent neurological injury as a result of a motor vehicle accident, the court held that the possible effects of the plaintiff's chronic alcoholism might well be relevant; accordingly, the court required the disclosure of the plaintiff's records from a subsequent hospital admission for treatment of alcoholism.

Life insurance applications, job applications, pharmacy records, employment physical examination reports and other ancillary records have often led to the discovery of highly relevant records of other injuries, or even ostensibly unrelated medical conditions that still may be relevant to issues of damages, prognosis, disability, or life expectancy. In an example based on an actual case, a careful search of pharmacy records revealed that the plaintiff, who alleged that the defendant had failed to diagnose and treat seizures, had previously been prescribed seizure medication by a different physician.

In short, the attorney who restricts or allows others to restrict the scope of record discovery may be creating problems for the trial court and jury when the case is tried, and depriving one or more of the parties of effective representation by counsel.

Ex Parte Interviews

From the defense perspective, in addition to the records of treatment, informal interviews of non-party treating physicians may yield particularly valuable information. Whether and to what extent such interviews are available depends on the law of the particular jurisdiction regarding the waiver of the physician-patient privilege, and on how the courts of that jurisdiction interpret the requirements of the federal HIPAA privacy law (Health Insurance Portability and Accountability Act, 42 USC 1320d et seq.).

In Arons v. Jutkowitz , 9 NY3d 393 (2007), the New York Court of Appeals held that an attorney may privately interview an adverse party's treating physician when the adverse party has placed his or her medical condition in controversy, and that the adverse party may be compelled to provide HIPAA-compliant authorizations permitting such interviews. Similarly, in Holman v. Rasak , 785 N.W.2d 98, 486 Mich. 429 (2010), the Supreme Court of Michigan held that ex parte interviews, which are permitted under Michigan law, are also consistent with HIPAA regulations, provided that “reasonable efforts have been made ' to secure a qualified protective order” that meets the requirements of the applicable regulations. (The Holman court noted that a “qualified protective order” is one that “(A) [p]rohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and (B) [r]equires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. [45 CFR 164.512(e)(1)(v).]“.)

The Supreme Court of Georgia, likewise, has held that defense counsel may apply for qualified protective orders, limited to the relevant medical condition, to allow interviews. Baker v. Wellstar Health System Inc. , 703 S.E.2d 601 (2010). Tennessee, on the other hand, prohibits ex parte interviews. Alsip v. Johnson City Med. Ctr. , 197 S.W.3d 722 (Tenn. 2006); see also Jacobs v. Nashville Ear, Nose & Throat Clinic, 2010 Tenn. App. LEXIS 448 (Tenn. Ct. App. July 15, 2010). But, according to Alsip, plaintiffs' counsel may consent to informal interviews of a non-party treating physician if both counsel are present. In Florida, ex parte interviews are prohibited by a strictly construed statute stating that medical providers may not discuss “the medical condition of a patient.” Fla. Stat. ' 456.057(7a), (8).

In those jurisdictions where ex parte interviews are permitted, obtaining appropriate HIPAA-compliant authorizations or qualified protective orders in discovery is an important task, because all too frequently a treating physician has not recorded all that is important, has made records in shorthand or handwriting that defies interpretation, or has not provided a complete copy of the patient's chart when it was requested. It may be, for example, that defense counsel has not been provided with correspondence from the patient or from consulting physicians that is contained in the office chart. If ex parte interviews are left to the trial preparation phase, it may be too late to follow up in important areas, and the attorney may be committed to a trial strategy that is based on erroneous or incomplete information.

It can be a challenge to explain to the non-party treating physician that a HIPAA-compliant authorization or qualified protective order does in fact permit him or her to speak to an attorney who does not represent the physician's patient. Yet, however difficult it may be, in the appropriate case it is the obligation of the attorneys to follow up on their efforts to secure the information needed. The interview does not need to be formal, or even conducted in person, and can be limited to obtaining answers from the witness that have been submitted in writing prior to the interview.

Next month we will look at issues surrounding the deposition of non-party physicians and the taking of trial testimony.

John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg, a member of this newsletter's Board of Editors, is a partner practicing in the firm's New York office, where she is head of the firm's Appellate Department.