Vol. 9, No. 2, Pg. 42. Counterpoint . . . Defense Counsel's Ex Parte Communication With Plaintiff's Doctors: A Bad One-Sided Deal.

• Author: By John Kassel

South Carolina Lawyer

1997.

Vol. 9, No. 2, Pg. 42.

Counterpoint . . . Defense Counsel's Ex Parte Communication With Plaintiff's Doctors: A Bad One-Sided Deal

42COUNTERPOINT . . . Defense Counsel's Ex Parte Communication With Plaintiff's Doctors: A Bad One-Sided DealBy John KasselEx parte communication between defense counsel and plaintiff's treating doctors undermines the physician-patient relationship; sanctions release of confidential information without safeguards; places defense counsel and doctor in a potential conflict of interest; encourages doctors to become experts against their patients; and provides no further information than can be gathered through formal discovery under the South Carolina Rules of Civil Procedure.

The damage inflicted by ex parte contact to the centuries old physician-patient relationship overshadows any conceivable benefit to the truth finding process. In the combative atmosphere of medical malpractice litigation in South Carolina, these one-sided meetings only add to the pressure on a plaintiff's treating physicians to refrain from testifying against the defendant doctor.

The legal landscape, however, has recently changed in light of the state Supreme Court's decision in South Carolina State Board of Medical Examiners v. Hedgepath, 480 S.E.2d 724 (1997). Now, continued use of ex parte communications may subject participating physicians to ethical violations and perhaps exclude their testimony at trial.

Most often the issue of ex parte communication arises in a medical malpractice action, but it may also occur in a personal injury case as well. Soon after suit is filed, counsel for the defendant doctor requests a meeting with one or more of the plaintiff's other treating physicians. For example, if the defendant doctor performed an initial operation on the plaintiff, the ex parte contact may be with the surgeon who subsequently performed a second, repair surgery. Or it may be with a medical consultant who provided care simultaneously with that of the defendant doctor but who has not been named as a party defendant. In any event, an interview is arranged between defense counsel and the doctor. Missing, of course, is counsel for the plaintiff, as well as any authorization by the plaintiff for the meeting or a subpoena or other legal process to compel attendance.

By virtue of the players present at such ex parte meetings, two dangers arise. First, the discussion will likely disclose confidential matters entrusted by the patient to the safekeeping of his or her physician. People tell their doctors all kinds of very private things with the expectation that the doctor will guard their confidences.

"Almost every member of the public is aware of the promise of discretion contained in the Hippocratic Oath and every patient has a right to rely upon this warranty of silence." Hammond v. Casualty & Surety Co. , 243 F. Supp. 793, 801 (N. D. Ohio 1965). "[T]here is widespread public knowledge of the ethical standards of the medical profession and widespread belief that confidences made by a patient to a physician may not be disclosed without the permission of the patient." Humphers v. First Interstate Bank, 68 Or. App. 573, 684 P.2d 581, aff 'd in part, rev'd in part, 298 Or. 706, 696 P.2d 527 (1985).

The purpose of ensuring that discussions between doctor and patient remain confidential is to encourage candid reporting of a patient's physical, mental or emotional health in order to aid in

43 proper diagnosis and treatment. This duty of confidentiality is deeply rooted in history, going back to ancient times. According to the Judicial Council of the AMA, the Hippocratic Oath was first conceived during the fifth century B.C.

To allow the patient's legal adversary leeway to privately question the patient's physician without even notice to the patient tramples the time honored tradition of confidentiality. The firmly fixed expectation of privacy is no longer fulfilled.

Without plaintiff's counsel present, no safeguards exist to prevent the discussion from wandering into areas that have nothing to do with the pending lawsuit. "The danger of ex parte interviews of a doctor by adverse counsel is that the patient's lawyer is afforded no opportunity to object to the disclosure of medical information that is remote, irrelevant, or compromising in a context other than the lawsuit at hand. West Virginia ex rel. Joan B. Kitzmiller v. Henning, 190 W.Va. 142, 437 S.E.2d 452 (1993). Letting defense counsel decide what information is relevant is "risky." Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353 (Iowa 1986).

Without knowing the nature of the confidential information beforehand, defense counsel may elicit such a response unknowingly. As an advocate in the heated battle of litigation, counsel may be compelled to resolve issues of relevancy in her favor. Ex parte contacts place counsel in the position of the fox guarding the henhouse. The physician fares no better when asked to decide what ought to be disclosed. "Asking the physician, untrained in the law, to assume this burden is a greater gamble and is unfair to the physician." Id. at 357.

In addition to these privacy concerns, ex parte communications raise a second problem - opportunity to exert undue influence by defense counsel on the patient's doctor. It would be naive to believe that in a state like South Carolina, with a single insurance carrier providing coverage to the vast majority...