The Physician-patient Privilege: May Defense Counsel Conduct Ex Parte Interviews With Plaintiff's Treating Physician
| Publication year | 1992 |
| Pages | 36 |
61 J. Kan. Bar Assn. September-October, 36 (1992). THE PHYSICIAN-PATIENT PRIVILEGE: MAY DEFENSE COUNSEL CONDUCT EX PARTE INTERVIEWS WITH PLAINTIFF'S TREATING PHYSICIAN
Vol. 61, September/October, 1992
Copyright (c) 1992 by the Kansas Bar Association; Mary Droll Feighny
MARY DROLL FEIGHNY is a research attorney for Carpenter Professional Association in Topeka. She received her B.A. and J.D. degrees from the University of Missouri-Kansas City in 1974 and 1981, respectively. She was admitted to the Missouri Bar in 1981 and the Kansas Bar in 1985.
Her area of practice includes civil litigation at both the trial and appellate levels.
Does K.S.A. 60-427(d) [FN1] authorize by implication private interviews of plaintiff's treating physicians by defense counsel? The Kansas appellate courts have not answered this query but Kansas federal district court decisions have answered affirmatively.
I. KANSAS FEDERAL DISTRICT COURTS
In Bryant v. Hilst, 136 F.R.D. 487 (D.Kan.1991), Judge Saffels affirmed the magistrate's denial of plaintiff's motion for a protective order prohibiting defense counsel from communicating ex parte with plaintiff's treating physician without authorization. The plaintiff contended that defendant's communications with the physician should be confined to discovery procedures (i.e., a deposition). Plaintiff conceded that there was no physician-patient privilege as to a condition which was an element or factor of his claim but argued that the privilege existed concerning other conditions which were not an issue.
Magistrate Newman had framed the issue as whether a litigant-patient, having put his medical condition in issue, may preclude the adverse party from ex parte communication with potential fact witnesses? The magistrate dismissed plaintiff's argument that there existed a privilege as to conditions other than the condition at issue by citing the unequivocal language of the statute. Cases from other jurisdictions *37 which supported plaintiff's position were of no avail because the privilege is statutory.
The magistrate addressed plaintiff's request for balancing the confidentiality and sanctity of the physician-patient privilege with the defendant's need for relevant information and decided in favor of the defendant on the basis that it is unfair to limit the access of one party to fact witnesses when the other side has regular access. Citing Rule One of the Federal Rules of Civil Procedure, which provides for the rules to be construed "to secure the just, speedy, and inexpensive determination of every action," Magistrate Newman decided that there was nothing in the rules which barred or restricted ex parte communication with fact witnesses. The court also mentioned the benefit of reducing litigation costs by the use of such informal discovery methods. However, it did indicate that a physician could not be forced into talking to defense counsel and could refuse to do so just as any fact witness.
Five days prior to Judge Saffels' affirmance of the decision in Hilst, Judge Theis affirmed Magistrate Reid's decision granting defendant's motion to allow ex parte interviews with plaintiff's treating physicians. Clark v. Homrighous, 136 F.R.D. 186 (D.Kan.1991). The magistrate's ruling was based upon the fact that no privilege existed because the condition of the patient-plaintiff was an element or factor in his claim and the Federal Rules of Civil Procedure do not bar informal, private interviews of a fact witness. The magistrate did order defense counsel to inform the treating physician that he or she had the right to decline to be privately interviewed.
This decision has limited value, however, because Magistrate Reid refused to consider additional grounds supporting the plaintiff's position because they were not raised in a timely fashion. Those arguments included a violation of the Kansas Intra Professional Code for Attorneys and Physicians...
To continue reading
Request your trial