Practice Tip: Is <i>Ex Parte</i> Communication with a Physician OK?

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In litigation involving bodily injury, 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 examine and evaluate the plaintiff personally, 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 an action requiring expert medical testimony, 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 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 at the deposition and eventually at the 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 not helpful to 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 roadmap, this type of informal pre-discovery meeting helps the defendant 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 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. They contend that 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 and a treating physician may help to “level the playing field” in terms of access to treating physician fact witnesses, since the 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 that 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 possibly open the door to 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 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).

In states like Alabama, Alaska, Colorado, Delaware, Kansas, Kentucky, Idaho, Michigan, New York, Oklahoma and South Carolina, however, 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).

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

Product Liability Claims

Notably, in the mass tort product 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 a defendant pharmaceutical company's motion to limit plaintiffs' ex parte discussion with their treating physicians, limiting plaintiffs only to 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).

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 that 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 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 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.

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