Ex Parte Communication with a Physician

As we discussed in the first part of this article, the advantages to the defense of ex parte communications with treating physicians, nurses and other health care providers are many. However, plaintiffs, the medical witnesses themselves and the law may seek to prevent such interviews.

Initiating Ex Parte Contact

In most states, a physician's duty to his patient is limited to acting in the patient's best medical interests, not necessarily to further her legal interests or aid her legal strategy. Opinion 9.07 of the American Medical Association's Code of Medical Ethics governs Medical Testimony. While the AMA's Code points out that treating physicians have an obligation to assist in the administration of justice, it also provides that “[w]hen a legal claim pertains to a patient the physician has treated, the physician must hold the patient's medical interests paramount, including the confidentiality of the patient's health information, unless the physician is authorized or legally compelled to disclose the information.”

Ultimately, a treating physician has no obligation to meet on an ex parte or informal basis with counsel. HIPAA may be used to argue that ex parte communications should be limited, though HIPAA itself neither prohibits nor permits ex parte interviews. Attorneys would be prudent to obtain a HIPAA-compliant authorization for release of protected health information from the plaintiff or get some other appropriate signed consent to contact her medical providers, in order to eliminate any question of impropriety. Because of the widespread awareness of HIPAA and the AMA Code, as a practical matter, it is unlikely a treating physician would meet with an attorney without first being provided evidence of such authorization or consent.

In the absence of explicit authorization to contact a treating physician or state law permitting the same, defense counsel may want to file a motion for a Qualified Protective Order requesting the court explicitly permit ex parte meetings for the limited purpose of discussing the medical conditions the plaintiff has placed in issue in the case. Limiting the scope of the requested contact to certain physicians, certain conditions and certain time frames increases the likelihood the motion will be granted, as does a provision to destroy or return any documents containing protected health information when the litigation concludes.

Some courts require the protective order to contain notice to the plaintiff's physician about the purpose of the interview, and explicit language stating that the physician is not required to speak to defense counsel. Other states require that opposing counsel be given prior notice of and an opportunity to attend the meeting under the terms of the qualified protective order; or, alternatively, the opposing counsel can require the transcription of the interview. See, e.g., Baker v. Wellstar Health System, Inc., 703 S.E.2d 601, 605 (Ga. 2010),

Preventing Ex Parte Contact

If you suspect ex parte communications could be an issue in a newly filed case, file a motion for a protective order or restraining order at the onset of litigation. The motion should seek to prevent the other party and her agents and representatives from communicating on an ex parte basis with the treating physician. Alternatively, the motion could seek to limit the scope of any ex parte discussions with the treating physician solely and exclusively to the treatment that the treating physician rendered to the plaintiff, and the plaintiff's medical condition. The motion should include a request to prohibit reviewing any documents or testimony with the physician, particularly documents or testimony designated as confidential or any other documents or things related to the opposing party's litigation theories and arguments.

Such a motion should make plain that it is asserted to prevent irreparable harm and “poisoning of the well” through one-sided and biased communications, which can make it impossible for treating physicians to provide unbiased testimony. The party seeking to prohibit ex parte communications should argue that formal discovery procedures, such as written and oral depositions, are available and sufficient to gather the information needed, and are better suited to protect the plaintiff's privacy rights. This is especially relevant if the plaintiff has a particular reason for restricting access, like a sensitive medical history irrelevant to the lawsuit. Another basis for such a motion, depending on the state, is the premise that no party possesses a proprietary right to witnesses or evidence, and an ex parte discussion permits one party to know and retain facts and evidence that are necessarily not shared with the other party.

In the event that ex parte contact may have occurred prior to the deposition of a treating medical provider ' either because a motion seeking to prohibit such contact was denied or because the opposing party has an automatic right to ex parte contact under state law ' the substance of any ex parte meetings with opposing counsel or the opposing party herself should be explored in full. This would include requesting documents from the deponent that would include any notes from any meetings with the other party's counsel, and invoices for the same; any affidavits or written statements given to the other party's counsel; any electronic communications in which documents for review were provided; and the standard document requests of medical records, curriculum vitae, authoritative literature, et cetera.

This would also include questions about what documents the witness was provided for review at any such meetings; what information was provided about other parties' testimony or opposing counsel's medical theories; and what the deponent was asked about his or her anticipated opinions and recollections. Counsel would also be well-advised to ask about any prior relationships between the deponent and opposing counsel, and how they communicated to set up any face-to-face meeting. If opposing counsel is very familiar with the deponent, he may have provided information or documents in their communications that he would prefer not to have discovered in the case, such as information about not-yet-disclosed expert witnesses with whom the deponent is familiar.

Conclusion

Whether ex parte contact is permitted in a medical malpractice case is dependent on state law. That law should be determined early in an action so that either appropriate ex parte discussions can take place, or an early motion to protect against such contact may be filed. Learning and following each state's local requirements for ex parte contact is key in order to avoid legal and ethical issues in the future. Penalties for improper ex parte contact are serious and can include monetary sanctions or fines, adverse inferences, or even a new trial. However, taking steps at the outset to seek permission to conduct ex parte contact from either the opposing party or the court will provide clarity as to what is permissible, and will inform litigants' discovery strategy immensely.

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.

As we discussed in the first part of this article, the advantages to the defense of ex parte communications with treating physicians, nurses and other health care providers are many. However, plaintiffs, the medical witnesses themselves and the law may seek to prevent such interviews.

Initiating Ex Parte Contact

In most states, a physician's duty to his patient is limited to acting in the patient's best medical interests, not necessarily to further her legal interests or aid her legal strategy. Opinion 9.07 of the American Medical Association's Code of Medical Ethics governs Medical Testimony. While the AMA's Code points out that treating physicians have an obligation to assist in the administration of justice, it also provides that “[w]hen a legal claim pertains to a patient the physician has treated, the physician must hold the patient's medical interests paramount, including the confidentiality of the patient's health information, unless the physician is authorized or legally compelled to disclose the information.”

Ultimately, a treating physician has no obligation to meet on an ex parte or informal basis with counsel. HIPAA may be used to argue that ex parte communications should be limited, though HIPAA itself neither prohibits nor permits ex parte interviews. Attorneys would be prudent to obtain a HIPAA-compliant authorization for release of protected health information from the plaintiff or get some other appropriate signed consent to contact her medical providers, in order to eliminate any question of impropriety. Because of the widespread awareness of HIPAA and the AMA Code, as a practical matter, it is unlikely a treating physician would meet with an attorney without first being provided evidence of such authorization or consent.

In the absence of explicit authorization to contact a treating physician or state law permitting the same, defense counsel may want to file a motion for a Qualified Protective Order requesting the court explicitly permit ex parte meetings for the limited purpose of discussing the medical conditions the plaintiff has placed in issue in the case. Limiting the scope of the requested contact to certain physicians, certain conditions and certain time frames increases the likelihood the motion will be granted, as does a provision to destroy or return any documents containing protected health information when the litigation concludes.

Some courts require the protective order to contain notice to the plaintiff's physician about the purpose of the interview, and explicit language stating that the physician is not required to speak to defense counsel. Other states require that opposing counsel be given prior notice of and an opportunity to attend the meeting under the terms of the qualified protective order; or, alternatively, the opposing counsel can require the transcription of the interview. See, e.g., Baker v. Wellstar Health System, Inc. , 703 S.E.2d 601, 605 (Ga. 2010),

Preventing Ex Parte Contact

If you suspect ex parte communications could be an issue in a newly filed case, file a motion for a protective order or restraining order at the onset of litigation. The motion should seek to prevent the other party and her agents and representatives from communicating on an ex parte basis with the treating physician. Alternatively, the motion could seek to limit the scope of any ex parte discussions with the treating physician solely and exclusively to the treatment that the treating physician rendered to the plaintiff, and the plaintiff's medical condition. The motion should include a request to prohibit reviewing any documents or testimony with the physician, particularly documents or testimony designated as confidential or any other documents or things related to the opposing party's litigation theories and arguments.

Such a motion should make plain that it is asserted to prevent irreparable harm and “poisoning of the well” through one-sided and biased communications, which can make it impossible for treating physicians to provide unbiased testimony. The party seeking to prohibit ex parte communications should argue that formal discovery procedures, such as written and oral depositions, are available and sufficient to gather the information needed, and are better suited to protect the plaintiff's privacy rights. This is especially relevant if the plaintiff has a particular reason for restricting access, like a sensitive medical history irrelevant to the lawsuit. Another basis for such a motion, depending on the state, is the premise that no party possesses a proprietary right to witnesses or evidence, and an ex parte discussion permits one party to know and retain facts and evidence that are necessarily not shared with the other party.

In the event that ex parte contact may have occurred prior to the deposition of a treating medical provider ' either because a motion seeking to prohibit such contact was denied or because the opposing party has an automatic right to ex parte contact under state law ' the substance of any ex parte meetings with opposing counsel or the opposing party herself should be explored in full. This would include requesting documents from the deponent that would include any notes from any meetings with the other party's counsel, and invoices for the same; any affidavits or written statements given to the other party's counsel; any electronic communications in which documents for review were provided; and the standard document requests of medical records, curriculum vitae, authoritative literature, et cetera.

This would also include questions about what documents the witness was provided for review at any such meetings; what information was provided about other parties' testimony or opposing counsel's medical theories; and what the deponent was asked about his or her anticipated opinions and recollections. Counsel would also be well-advised to ask about any prior relationships between the deponent and opposing counsel, and how they communicated to set up any face-to-face meeting. If opposing counsel is very familiar with the deponent, he may have provided information or documents in their communications that he would prefer not to have discovered in the case, such as information about not-yet-disclosed expert witnesses with whom the deponent is familiar.

Conclusion

Whether ex parte contact is permitted in a medical malpractice case is dependent on state law. That law should be determined early in an action so that either appropriate ex parte discussions can take place, or an early motion to protect against such contact may be filed. Learning and following each state's local requirements for ex parte contact is key in order to avoid legal and ethical issues in the future. Penalties for improper ex parte contact are serious and can include monetary sanctions or fines, adverse inferences, or even a new trial. However, taking steps at the outset to seek permission to conduct ex parte contact from either the opposing party or the court will provide clarity as to what is permissible, and will inform litigants' discovery strategy immensely.

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.