Vol. 9, No. 2, Pg. 37. Ex Parte Conferences with Treating Physicians Point . . . Fairness Demands Equal Access.

• Author: By Christine L. Companion

South Carolina Lawyer

1997.

Vol. 9, No. 2, Pg. 37.

Ex Parte Conferences with Treating Physicians Point . . . Fairness Demands Equal Access

37EX PARTE CONFERENCES WITH TREATING PHYSICIANS POINT . . . Fairness Demands Equal AccessBy Christine L. CompanionIn defending a civil action, diligent preparation requires finding out what the fact witnesses have to say. When a party places his or her medical or physical well being into issue, the party's treating physicians become important fact witnesses in evaluating the claim and determining the extent of the party's injuries. The most efficient and cost-effective method of learning about a witness's intended testimony is an ex parte, informal conference with the physician. Recent attempts by plaintiffs' counsel to prevent treating physicians from conferring with defense counsel serve only to obstruct the investigation of the truth that our judicial system promotes.

There should be no question that opposing counsel may properly engage in ex parte conferences with treating physicians of a party, who by virtue of bringing a lawsuit asserting physical or mental injury, puts his or her mental or physical condition into issue. Because no common law or statutory physician-patient privilege exists in South Carolina, communications between physician and patient are not protected from discovery. Felder v. Wyman, 139 F.R.D. 85, 87 (D.S.C. 1991); Peagler v. Atlantic Coast Line R.R. Co., 232 S.C. 274, 101 S.E.2d 821, 825 (1958); Aakjer v. Spagnoli, 291 S.C. 165, 352 S.E.2d 503 (Ct. App. 1987). Indeed, defense counsel may (and routinely do) subpoena and acquire plaintiffs' medical records and take depositions of plaintiffs' treating physicians. Recently, however, plaintiffs' counsel have challenged ex parte conferences between opposing counsel and treating physicians as unethical and improper. This is simply not the case.

In an Order examining informal conferences with treating physicians, U.S. District Court Judge Clyde H. Hamilton applied South Carolina state procedural law to determine that ex parte contacts were permissible. Felder, 139 F.R.D. at 90. In Felder, Judge Hamilton held that a prohibition on ex parte conferences would make discovery more "difficult and costly" because contacts between defense counsel and treating physicians would require either the taking of a formal deposition or obtaining prior consent from the plaintiff. Id. at 89. Furthermore, meeting times would have to be coordinated with plaintiff's counsel. Id.

In examining informal conferences under both the South Carolina and Federal Rules of Civil Procedure, Judge Hamilton found that "[t]he Rules themselves do not limit discovery to the methods set forth in the Rules." Felder, 139 F.R.D. at 90. Citing the U.S. Supreme Court's landmark discovery case, Hickman v. Taylor, Judge Hamilton noted that "[p]rivate interviews by attorneys have been recognized as a 'time-honored' method for conducting discovery." Id.

There should be no question that opposing counsel may properly engage in ex parte conferences with treating physicians of a party, who by virtue of bringing a lawsuit asserting physical or mental injury, puts his or her mental or physical condition into issue.

Likewise, in a Greenville County case, Biggerstaff v. Allen

38Bennett Hospital, C/A No. 88-CP-23- 4864 (October 11, 1989), South Carolina Circuit Judge Larry R. Patterson held that informal conferences with treating physicians are favored by public policy and fundamental fairness as an effective method of pre-trial preparation.

In Biggerstaff, Judge Patterson noted that the practical effect of refusing to permit defense counsel to engage in ex parte conferences with treating physicians is that plaintiff's counsel would then be afforded a "neutralization technique." In other words, plaintiff's counsel could put forth only favorable treating physicians as witnesses while insulating the unfavorable from defense counsel.

Pre-trial discovery "is intended to be a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial. It is not a tactical game to be used to obstruct or harass the opposing litigant, nor is it a weapon in a war of inconvenience." Id. citing Ostendorf v. International Harvester Co., 433 N.E.2d 253, 257 (Ill. 1982). Moreover, Judge Patterson found that requiring all contact be made by formal discovery methods would increase substantially the costs of litigation.

Generally, "no party to litigation has anything resembling a proprietary right to any witness's evidence. Absent a privilege, no party is entitled to restrict an opponent's access to a witness, however partial or important to him or her, by insisting on some notion of allegiance." Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.C.Cir. 1983)...