Spring 2004 #1. A proposal for broader access to treating physicians during litigation.

Author:by Thomas V. Laprade
 
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Maine Bar Journal

2004.

Spring 2004 #1.

A proposal for broader access to treating physicians during litigation

Maine Bar JournalSpring 2004A PROPOSAL FOR BROADER ACCESS TO TREATING PHYSICIANS DURING LITIGATIONby Thomas V. LapradeHas any attorney defending a tort claim involving personal injuries, say, a medical malpractice claim, ever arrived forty-five minutes early to the deposition of a plaintiff's treating physician in order to "prepare" the treating physician for the questions that will be asked at the deposition? Of course not. Have any of those same defense attorneys ever arrived forty-five seconds prior to the start of the same type of deposition, been shown to the room where the deposition will occur, sat down and waited for the physician to come in only to see the physician enter accompanied by the plaintiff's counsel who has arrived early to prepare the doctor for deposition? It happens all the time.

Why is this? Why would defense counsel even bother to depose treating physicians? Why not simply arrange a meeting with the physician and interview him about his thoughts and opinions relevant to the case? Is there any rule against such a course of action? If not, should there be? Why do plaintiffs' attorneys so often meet with treating physicians outside the presence of opposing counsel? Should this be permitted? Do any rules speak to this practice?

The answer to these questions cannot be found in any statute or decision of the Maine Supreme Judicial Court sitting as the Law Court. A federal magistrate judge in Maine has addressed a similar but very narrowly put question that speaks to some of these issues in the case of Neubeck v. Lundquist, 186 F.R.D. 249, 251 (D. Me. 1999). However, if one attempts to apply Neubeck to a broader range of cases, that decision will be found to have many holes and it creates more questions than answers. This article will argue that Neubeck does not and should not answer most instances in which these questions arise. Rather, the fairer and more comprehensive answer to these questions lies in the Maine Rules of Court, the Maine Professional Ethics Opinions, the case law from other states, and a proper consideration of policy issues.

Current State of the Law

There is no rule of court that prohibits defendant's counsel from contacting the plaintiff's treating physician, nor is there any rule of court that requires that such contacts take place only in the presence of plaintiff's counsel. In addition, the rules of court do not address when a plaintiff's attorney can contact a plaintiff's treating physician. And rules regarding patient confidentiality, as we shall see, have limited applicability - if they in fact apply at all - once litigation begins.

The Professional Ethics Commission of the Board of Bar Overseers has said that "the Maine Bar Rules themselves do not prohibit" a defendant's counsel, on his own, from discussing with the plaintiff's physician the plaintiff's medical condition and treatment. Me. Prof. Ethics Comm'n, Op. No. 82, 3 Maine Manual on Professional Responsibility (Nov. 4, 1987). The Commission, however, viewed the issue very narrowly to determine only whether using such a discovery technique would violate any bar rule. The only bar rule even implicated, the Commission found, would be Rule 3.7(g) concerning a lawyer's communications with witnesses. And that rule, the Commission concluded, did not in any way address the matter at hand. Moreover, the Commission cautioned, various state courts and state ethics commissions have addressed the issue and reached different results. Whether, as a matter of law, defense counsel may contact a plaintiff's treating physician, the Commission warned, remained, under Maine law, an undecided question.

If the Maine Bar Rules do not answer the question, which rules do? The Maine Rules of Civil Procedure do not speak directly to the issue. Rule 26 specifically identifies only the forms of discovery governed by the rules, that is, depositions, interrogatories, production of documents, independent medical exams, and requests for admissions. By specifically listing these forms of discovery, though, the Rules clearly do not mean to limit the manner in which attorneys may gather information. Such a reading of the rule would mean that every surveillance, every criminal history search, every Dunn & Bradstreet report, every Google, Westlaw, or Lexis search, every witness interview not conducted under oath would be forbidden. Rule 26, it can be concluded, governs only the discovery of information that the opposing party and her counsel holds personally. If information can be gained from other sources, then nothing in the Rules of Civil Procedure prevents either party from trying to obtain information from those sources.

What about the well known right to privileged and confidential communications between physician and patient? Of course, if a matter is privileged then it is not discoverable through any means. This raises the question of whether the physician-patient privilege prevents defense counsel from communicating with the plaintiff's treating physician.

It is a widely established principle that when a plaintiff brings suit claiming damages arising from medical treatment, the plaintiff cannot claim that the treatment that forms the basis of his claim for damages is privileged. As one leading treatise has articulated:

But it is neither human, natural, nor understandable to claim protection from exposure by asserting a privilege for communications to doctors, at the very same time when the patient is parading before the public the mental or physical condition as to which he consulted the doctor, by bringing an action for damages arising from such condition.

Charles T. McCormick, Law of Evidence § 103 (2d ed. E. Cleary ed. 1972), (quoted and adopted by the Vermont Supreme Court in Mattison v. Poulen, 353 A.2d 327, 330 (Vt. 1976)). See also 8 John H. Wigmore, Wigmore on Evidence 2389 (McNaughton ed. 1961) ("The whole reason for the privilege is the patient's supposed unwillingness that the ailment should be disclosed to the world at large; hence the bringing of a suit in which the very declaration, and much more the proof, discloses the ailment to the world at large, is of itself an indication that the supposed repugnancy to disclosure does not exist."); Collins v. Bair, 268 N.E.2d 95, 98 (Ind.1971); Stempler v. Speidell, 495 A.2d 857, 859 (N.J. 1985).

The general, common sense rule that a plaintiff forfeits the physician-patient privilege by suing about his medical condition is the law of Maine. The Maine Rules of Evidence specifically provide that there is no physician-patient privilege when the condition for which the patient was treated is an element of the patient's claim:

(3) Condition an Element of Claim or Defense. There is no privilege under this rule as to communications relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which the condition of the patient is an element of the claim or defense of the patient, or of any party claiming, through a contract to which the patient is or was a party, or after the patient's death, in any proceeding in which any party puts the condition in issue.

M.R. Evid. 503(e)(3). As the leading commentators on the Maine Rules of Evidence have stated, this rule forbids "a party to seek damages with reference to a physical or mental condition and at the same time suppress evidence relevant to that condition." Field & Murray, Maine Evidence, § 503.4 (2000 ed.).

It is safe to assume that most...

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