A Plaintiff Attorney's View of Sorenson v. Barbuto

Publication year2010
Utah Bar Journal
Volume 23.

Vol. 23, No. 1, 26. A Plaintiff Attorney's View of Sorenson v. Barbuto

Utah Bar Journal
Volume 23 No. 1
Jan/Feb 2010

Utah Law Developments

A Plaintiff Attorney's View of Sorenson v. Barbuto

by Brent Gordon

In Sorenson v. Barbuto, 2008 UT 8, 177 P.3d 614, the Utah Supreme Court prohibited informal ex parte contacts between insurance defense attorneys and plaintiffs' treating physicians. The supreme court directed insurance defense attorneys to "confine their contact and communications with a physician who treated their adversary to formal discovery methods." Id. andpara; 27. The court explained that formal discovery is necessary, because physicians and insurance attorneys are not reliable sources to ensure that privileged medical communications are not disclosed during ex parte conversations. See id. ¶ 23.

Barbuto simply reiterated existing law governing the disclosure of medical information in personal injury cases: the patient-physician privilege protects from disclosure medical communications that are unrelated to the injuries at issue in a case. But what Barbuto did, was embolden plaintiff attorneys to protect privileged medical information in their clients' medical files. Thus, S. Grace Acosta, an insurance defense attorney, recently noted a "dramatic increase in objections to subpoenas and medical releases" following the Barbuto decision. S. Grace Acosta, are Medical records Now Off limits? an examination of Sorenson v. Barbuto, 22 Utah Bar J. 3 (May/June 2009).

Plaintiffs are justified in objecting to subpoenas and medical releases that seek the disclosure of all of their medical records, because some of the records may be protected by the patient-physician privilege. Allowing insurance defense attorneys to obtain records directly from the provider "would make it impossible for a patient or a court to appropriately monitor the scope of the physician's disclosures." Barbuto, 2008 UT 8, ¶ 23. Discovery rules prohibit discovery of privileged matters. See Utah R. Civ. P. 26(b)(1). And a court must quash a subpoena that seeks privileged information. See id. 45(e)(3)(E).

Insurance defense attorneys do not believe it is fair to limit their examination of privileged documents, because plaintiffs and their attorneys may claim that certain records are unrelated and privileged when they are not. While this concern is legitimate, the public policy reasons supporting the patient-physician...

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