Where, When and How Is <i>Ex Parte</i> Communication With a Physician OK?

From the outset in a medical malpractice action, there is an inequity between the unfettered access a plaintiff and her counsel have to her treating physicians, and the hoops a defendant healthcare provider, hospital, or even a product manufacturer in blended medical malpractice and product liability cases, must jump through to discover facts about the plaintiff's care and treatment. Therefore, it may be particularly advantageous for counsel for the defendant medical providers to meet with or have ex parte discussions with the plaintiff's other treating physicians and medical providers.

The advantages of such ex parte discussions are clear: They can provide the defendant healthcare provider a roadmap into what the treating physician will testify to at deposition and eventually at trial (provided the treating physician testifies in a consistent manner). This includes both allowing counsel conducting ex parte meetings to learn of potentially helpful testimony and impressions to be elicited from the treating physician, and to alert counsel to when a treating physician's testimony may be critical of one or more defendants and may cause counsel to reconsider utilizing the treating physician as a witness at trial without alerting the plaintiff to his or her anticipated testimony.

Aside from providing a road map, this type of informal pre-discovery meeting helps the defendant healthcare provider or hospital reduce costs by determining which witnesses do not have helpful information that is relevant to the case, and who are therefore unnecessary to depose, both from a financial standpoint and from the standpoint of potential to damage a case. Proponents of ex parte discussions argue that requiring a defendant health care provider or hospital to spend time and money venturing to each far-flung facility to depose every treating physician who ultimately cannot provide much, if any, information outside of his records is preposterous and wasteful, when a simple ex parte interview would have sufficed to establish that no deposition would be necessary.

To that end, ex parte discussions between a defendant healthcare provider or hospital and a treating physician may help to “level the playing field” in terms of access to treating physician fact witnesses, since plaintiff generally has unrestricted access to her treating physicians.

However, in addition to allowing defense counsel to glean important facts, an ex parte discussion with a treating physician could also be an opportunity to educate the treating physician on the defendant's theory of the case, and to review documents and testimony of other providers or experts, which may further inform his or her opinions and understanding of the medical issues.

Opponents of these ex parte discussions therefore argue that such communications can taint and improperly influence a treating physician's deposition and trial testimony, and open the door to possibly questionable conduct by the attorneys seeking the ex parte discussions that will occur without plaintiff's counsel's knowledge ' or opportunity to respond. Case documents or testimony could be mischaracterized or improperly emphasized, and this would undoubtedly shape a treating physician's view of the opposing party, and ultimately her testimony. The counter to this argument, of course, is that the defendant healthcare provider or hospital is entitled to a full and appropriate defense, and must prepare its defense by eliciting information from all available sources, particularly treating physicians.

Variations from State to State

Whether ex parte contact with a treating physician is appropriate depends entirely on the state law applicable to your case. Many states statutorily prohibit ex parte contact, unless the party seeking the contact has explicit patient consent. For example, Arkansas prohibits informal, ex parte contact or communication with the plaintiff's treating physician, unless the plaintiff expressly consents. Ark. R. Evid. 503(d)(3)(B); Ark. R. Civ. P. 35(c)(2). Similar statutes exist in Arizona, Mississippi, Pennsylvania, and Virginia. See Ariz. Rev. Stat. Ann. ' 12-2235; Miss. R. Evid. 503(f); Pa. R. Civ. P. 4003.6; Va. Code Ann. ' 8.01-399A. Illinois and Texas have similar case law-based prohibitions, unless there is explicit patient consent. See, e.g., Petrillo v. Syntex Lab, Inc., 148 Ill. App. 3d 581 (1st Dist. 1986); In re Collins, 286 S.W.3d 911, 2009 (Tex. 2009).

However in states like Alabama, Alaska, Colorado, Delaware, Kansas, Kentucky, Idaho, Michigan, New York, Oklahoma, and South Carolina, limited ex parte contact is permitted, provided the treating physician is agreeable to engaging in such contact and that such contact does not violate another privilege or state law. See Romine v. Medicenters of America, Inc., 476 So.2d 51, 55 (Ala. 1985); Langdon v. Champion, 745 P.2d 1371, 1373 (Alaska 1987); Reutter v. Weber, 179 P.3d 977 (Colo. 2007); Green v. Bloodsworth, 501 A.2d 1257, 1259 (Del. Super. 1985); Paliwoda v. Showman, 12-2740-KGS, 2013 WL 3756591, *2 (D. Kan. July 15, 2013); Weiss v. Astellas Pharma, US, Inc ., CIVA 05-527 JMH, 2007 WL 2137782, *6 (E.D. Ky. July 23, 2007); Morris v. Thomson, 937 P.2d 1212, 1217 (Idaho 1997); Domako v. Rowe, 475 N.W.2d 30, 362 (Mich. 1991); Arons v. Jutkowitz, 880 N.E.2d 831, 837 (N.Y. 2007); Holmes v. Nightingale, 158 P.3d 1039, 1046 (Okla. 2007); Felder v. Wyman, 139 F.R.D. 85, 90 (D. S.C. 1991).

Florida has a new statute, recently held preempted by federal law, requiring pre-suit notice of a medical malpractice claim to be accompanied by an authorization permitting the defendant to conduct ex parte interviews of the plaintiff's other treating physicians, limited to matters pertinent to the claim. Fla. Stat. Ann. ' 766.1065(3)(E).

In other states, the law is sometimes still unsettled, or murky.

There is no clear national trend on whether ex parte contact is permitted in the medical malpractice setting. Recent cases across the country show that courts remain split on the permissibility of this practice. As referenced, the Northern District of Florida recently held the Health Insurance Portability and Accountability Act of 1996 (HIPAA) preempted Florida's statute requiring an authorization for ex parte interviews as part of pre-suit notification, because such mandated consent to ex parte interviews circumvented HIPAA's requirement of a patient's consent or court order for disclosure of information in connection with a potential claim. Murphy v. Dulay, 4:13CV378-RH/CAS, 2013 WL 5498140, *6-8 (N.D. Fla. Sept. 25, 2013).

Somewhat in contrast, the Utah Supreme Court recently ruled that a defendant hospital could conduct ex parte meetings with its employed physicians without providing reasonable notice to the plaintiff when the plaintiff alleged that the hospital was vicariously liable for the physicians' conduct, but a treating physician who was not employed by the hospital violated his health care fiduciary duty of confidentiality to the plaintiff by meeting ex parte with the hospital's counsel without giving reasonable prior notice to plaintiff. Wilson v. IHC Hospitals, Inc., 289 P.3d 369, 397 (Utah 2012).

Product Liability Claims

Notably, in the mass tort products liability context, both plaintiffs and defendants may seek out ex parte physician communications and may seek to limit such meetings for their adversaries. While at least one multi-district litigation court has determined ex parte meetings should be allowed “as permitted by applicable state law” (In re Orthopedic Bone Screw Prod. Liab. Litig., MDL No. 1014, 1996 WL 530107, *2 (E.D.Pa. Sept. 16, 1996)), other multi-district litigation courts have imposed restrictions on ex parte contact.

For example, the Northern District of Ohio granted the defendant pharmaceutical company's motion to limit plaintiffs' ex parte discussion with their treating physicians, limiting plaintiffs to only discussions of the treating physicians' records and courses of treatment, and prohibiting discussions of liability issues or theories, product warnings, or company documents. In re Ortho Evra Products Liability Litigation, MDL No. 1742, No. 1:06-40000, 2010 WL 320064, *2 (N.D. Ohio Jan 20, 2010). In contrast, the District of Rhode Island prohibited defendant device manufacturers from ex parte discussions with plaintiffs' treating physicians. In re Kugel Mesh Hernia Repair Patch Litig., MDL No. 07'1842ML, 2008 WL 2420997, *1 (D.R.I. Jan 22, 2008), order clarified, MDL 07-1842ML, 2008 WL 2810207 (D.R.I. July 21, 2008).

This discussion continues in Part Two in next month's issue.

Lori G. Cohen, a member of this newsletter's Board of Editors, is Chair of Greenberg Traurig, LLP's national Pharmaceutical, Medical Device & Health Care Litigation Group. She also chairs the firm's national Trial Practice Group and the Atlanta Litigation Practice. Marcella C. Ducca is an associate in the firm's Atlanta office. She focuses her practice on product liability litigation and also defends hospitals and physicians from claims alleging medical malpractice.

In medical malpractice cases, treating physicians, nurses and other providers are key witnesses. They have specialized knowledge of the plaintiff and her medical conditions, and, unlike expert witnesses, they have had the opportunity to personally examine and evaluate the plaintiff outside of the litigation context. They can explain their unique shorthand or abbreviations in the medical records (or read their poor handwriting), provide detail behind the written medical records and lay the foundation for a defendant's causation and damages theories. Because ex parte meetings and discussions with treating physicians can be so informative, they are often seen as invaluable tools for any party permitted to meet with treating physicians.

However, as helpful as these discussions can be for parties who are permitted to meet with treating physicians, these discussions can also be particularly damaging and have long-term ramifications for a party that is unaware of or unable to participate in such meetings. They may also have legal and ethical consequences for parties that attempt to conduct such meetings without familiarizing themselves with the law of their particular jurisdiction.

The Advantages and Disadvantages

From the outset in a medical malpractice action, there is an inequity between the unfettered access a plaintiff and her counsel have to her treating physicians, and the hoops a defendant healthcare provider, hospital, or even a product manufacturer in blended medical malpractice and product liability cases, must jump through to discover facts about the plaintiff's care and treatment. Therefore, it may be particularly advantageous for counsel for the defendant medical providers to meet with or have ex parte discussions with the plaintiff's other treating physicians and medical providers.

The advantages of such ex parte discussions are clear: They can provide the defendant healthcare provider a roadmap into what the treating physician will testify to at deposition and eventually at trial (provided the treating physician testifies in a consistent manner). This includes both allowing counsel conducting ex parte meetings to learn of potentially helpful testimony and impressions to be elicited from the treating physician, and to alert counsel to when a treating physician's testimony may be critical of one or more defendants and may cause counsel to reconsider utilizing the treating physician as a witness at trial without alerting the plaintiff to his or her anticipated testimony.

Aside from providing a road map, this type of informal pre-discovery meeting helps the defendant healthcare provider or hospital reduce costs by determining which witnesses do not have helpful information that is relevant to the case, and who are therefore unnecessary to depose, both from a financial standpoint and from the standpoint of potential to damage a case. Proponents of ex parte discussions argue that requiring a defendant health care provider or hospital to spend time and money venturing to each far-flung facility to depose every treating physician who ultimately cannot provide much, if any, information outside of his records is preposterous and wasteful, when a simple ex parte interview would have sufficed to establish that no deposition would be necessary.

To that end, ex parte discussions between a defendant healthcare provider or hospital and a treating physician may help to “level the playing field” in terms of access to treating physician fact witnesses, since plaintiff generally has unrestricted access to her treating physicians.

However, in addition to allowing defense counsel to glean important facts, an ex parte discussion with a treating physician could also be an opportunity to educate the treating physician on the defendant's theory of the case, and to review documents and testimony of other providers or experts, which may further inform his or her opinions and understanding of the medical issues.

Opponents of these ex parte discussions therefore argue that such communications can taint and improperly influence a treating physician's deposition and trial testimony, and open the door to possibly questionable conduct by the attorneys seeking the ex parte discussions that will occur without plaintiff's counsel's knowledge ' or opportunity to respond. Case documents or testimony could be mischaracterized or improperly emphasized, and this would undoubtedly shape a treating physician's view of the opposing party, and ultimately her testimony. The counter to this argument, of course, is that the defendant healthcare provider or hospital is entitled to a full and appropriate defense, and must prepare its defense by eliciting information from all available sources, particularly treating physicians.

Variations from State to State

Whether ex parte contact with a treating physician is appropriate depends entirely on the state law applicable to your case. Many states statutorily prohibit ex parte contact, unless the party seeking the contact has explicit patient consent. For example, Arkansas prohibits informal, ex parte contact or communication with the plaintiff's treating physician, unless the plaintiff expressly consents. Ark. R. Evid. 503(d)(3)(B); Ark. R. Civ. P. 35(c)(2). Similar statutes exist in Arizona, Mississippi, Pennsylvania, and Virginia. See Ariz. Rev. Stat. Ann. ' 12-2235; Miss. R. Evid. 503(f); Pa. R. Civ. P. 4003.6; Va. Code Ann. ' 8.01-399A. Illinois and Texas have similar case law-based prohibitions, unless there is explicit patient consent. See, e.g., Petrillo v. Syntex Lab, Inc. , 148 Ill. App. 3d 581 (1st Dist. 1986); In re Collins, 286 S.W.3d 911, 2009 (Tex. 2009).

However in states like Alabama, Alaska, Colorado, Delaware, Kansas, Kentucky, Idaho, Michigan, New York, Oklahoma, and South Carolina, limited ex parte contact is permitted, provided the treating physician is agreeable to engaging in such contact and that such contact does not violate another privilege or state law. See Romine v. Medicenters of America, Inc. , 476 So.2d 51, 55 (Ala. 1985); Langdon v. Champion , 745 P.2d 1371, 1373 (Alaska 1987); Reutter v. Weber , 179 P.3d 977 (Colo. 2007); Green v. Bloodsworth , 501 A.2d 1257, 1259 (Del. Super. 1985); Paliwoda v. Showman, 12-2740-KGS, 2013 WL 3756591, *2 (D. Kan. July 15, 2013); Weiss v. Astellas Pharma, US, Inc ., CIVA 05-527 JMH, 2007 WL 2137782, *6 (E.D. Ky. July 23, 2007); Morris v. Thomson , 937 P.2d 1212, 1217 (Idaho 1997); Domako v. Rowe , 475 N.W.2d 30, 362 (Mich. 1991); Arons v. Jutkowitz , 880 N.E.2d 831, 837 (N.Y. 2007); Holmes v. Nightingale , 158 P.3d 1039, 1046 (Okla. 2007); Felder v. Wyman , 139 F.R.D. 85, 90 (D. S.C. 1991).

Florida has a new statute, recently held preempted by federal law, requiring pre-suit notice of a medical malpractice claim to be accompanied by an authorization permitting the defendant to conduct ex parte interviews of the plaintiff's other treating physicians, limited to matters pertinent to the claim. Fla. Stat. Ann. ' 766.1065(3)(E).

In other states, the law is sometimes still unsettled, or murky.

There is no clear national trend on whether ex parte contact is permitted in the medical malpractice setting. Recent cases across the country show that courts remain split on the permissibility of this practice. As referenced, the Northern District of Florida recently held the Health Insurance Portability and Accountability Act of 1996 (HIPAA) preempted Florida's statute requiring an authorization for ex parte interviews as part of pre-suit notification, because such mandated consent to ex parte interviews circumvented HIPAA's requirement of a patient's consent or court order for disclosure of information in connection with a potential claim. Murphy v. Dulay, 4:13CV378-RH/CAS, 2013 WL 5498140, *6-8 (N.D. Fla. Sept. 25, 2013).

Somewhat in contrast, the Utah Supreme Court recently ruled that a defendant hospital could conduct ex parte meetings with its employed physicians without providing reasonable notice to the plaintiff when the plaintiff alleged that the hospital was vicariously liable for the physicians' conduct, but a treating physician who was not employed by the hospital violated his health care fiduciary duty of confidentiality to the plaintiff by meeting ex parte with the hospital's counsel without giving reasonable prior notice to plaintiff. Wilson v. IHC Hospitals, Inc. , 289 P.3d 369, 397 (Utah 2012).

Product Liability Claims

Notably, in the mass tort products liability context, both plaintiffs and defendants may seek out ex parte physician communications and may seek to limit such meetings for their adversaries. While at least one multi-district litigation court has determined ex parte meetings should be allowed “as permitted by applicable state law” (In re Orthopedic Bone Screw Prod. Liab. Litig., MDL No. 1014, 1996 WL 530107, *2 (E.D.Pa. Sept. 16, 1996)), other multi-district litigation courts have imposed restrictions on ex parte contact.

For example, the Northern District of Ohio granted the defendant pharmaceutical company's motion to limit plaintiffs' ex parte discussion with their treating physicians, limiting plaintiffs to only discussions of the treating physicians' records and courses of treatment, and prohibiting discussions of liability issues or theories, product warnings, or company documents. In re Ortho Evra Products Liability Litigation, MDL No. 1742, No. 1:06-40000, 2010 WL 320064, *2 (N.D. Ohio Jan 20, 2010). In contrast, the District of Rhode Island prohibited defendant device manufacturers from ex parte discussions with plaintiffs' treating physicians. In re Kugel Mesh Hernia Repair Patch Litig., MDL No. 07'1842ML, 2008 WL 2420997, *1 (D.R.I. Jan 22, 2008), order clarified, MDL 07-1842ML, 2008 WL 2810207 (D.R.I. July 21, 2008).

This discussion continues in Part Two in next month's issue.

Lori G. Cohen, a member of this newsletter's Board of Editors, is Chair of Greenberg Traurig, LLP's national Pharmaceutical, Medical Device & Health Care Litigation Group. She also chairs the firm's national Trial Practice Group and the Atlanta Litigation Practice. Marcella C. Ducca is an associate in the firm's Atlanta office. She focuses her practice on product liability litigation and also defends hospitals and physicians from claims alleging medical malpractice.