V. Ex Parte Communications with Treating Physicians
When plaintiffs file lawsuits putting their medical conditions or injuries at issue, they generally waive their physician-patient privilege to the extent of those conditions or injuries. Plaintiffs provide medical authorizations to lawyers for defendants so that they may gather appropriate medical records from health-care providers, including treating physicians. But beyond gathering medical records, defense lawyers may wish to speak with plaintiffs' treating physicians outside the presence of plaintiffs' counsel. Treating physicians do not fall into any of the categories of people shielded from ex parte communications by Rule 4.2. A lawyer's representation of a plaintiff does not equate to concurrent representation of the plaintiff's treating physicians. Historically, many courts have permitted defense lawyers to have ex parte communications with plaintiffs' treating doctors.139 As a Kansas federal court explained:
It is plaintiff that has placed his medical condition in issue in this action. Plaintiff's treating physicians and other health care providers are fact witnesses. If the court were to [forbid ex parte communications], plaintiff's counsel would have unrestricted access to these witnesses, but by the court's order defendant's counsel would not be allowed to interview these witnesses simply because they were treating physicians, although they are witnesses with no duplicable information concerning major areas of the action, the plaintiff's medical condition, disabilities, damages and causation. Defendant's counsel would be limited to taking the deposition of any treating physician or foregoing the knowledge of evidence which might be material to the case. Defendant's counsel would always be required to expend the funds necessary to take a deposition in order to determine whether treating physicians are in possession of any facts material to the action. As a result, the costs to defendant would be materially increased to obtain the same facts available to plaintiff without deposition costs. Plaintiff would have regular access on multiple occasions to each witness, while defendant would be limited to a single "on the record" inquiry. There is no such similar circumstance with respect to other fact witnesses. One party generally may not limit the access of the other party to fact witnesses. The court believes that both parties should have unfettered access to fact witnesses and that informal discovery from these witnesses should be encouraged.140
Numerous courts, however, have prohibited ex parte communications with plaintiffs' treating physicians as a matter of public policy or in furtherance of physician-patient confidentiality doctrine.141 As the Utah Supreme Court reasoned:
Allowing ex parte communications between a treating physician and opposing parties in litigation would undermine the physician-patient relationship because plaintiffs would lack adequate assurance that their candid responses to questions important to determining their appropriate medical treatment would remain confidential. . . . [E]x parte communications between a treating physician and counsel opposing a patient should be prohibited because such communications are destructive to the relationship that exists between a physician and a patient.
[P]ermitting ex parte communications between a treating physician and an opposing counsel would make it impossible for a patient or a court to appropriately monitor the scope of the physician's disclosures. . . . [A] patient's waiver of privilege does not mean that everything disclosed to or learned by a physician in the course of treating a patient is subject to disclosure once a patient's physical or mental condition is at issue in litigation.142
The better-reasoned position holds that defense lawyers are permitted to have ex parte communications with treating physicians, as long as plaintiffs execute medical authorizations permitting the physicians to disclose relevant patient information. Fears about physicians not being savvy enough to know what information they may reveal and what they must withhold are unjustified. Although it is true that defense lawyers' ex parte communications with treating physicians are not subject to judicial monitoring and thus hold potential for abuse, the same is true of undisclosed communications by plaintiffs' counsel.
Today, ex parte communications with treating physicians implicate the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Congress enacted HIPAA to increase access to health care and expand insurance portability and renew-ability. Driven by concerns about the privacy of patients' health information, the Department of Health and Human Services (HHS) promulgated regulations regarding protected health information. Physicians may not disclose protected health information except as permitted by HHS regulations.143 HIPAA permits disclosure pursuant to patient authorizations, and even permits disclosure without an authorization where "required by law" or "in the course of any judicial or administrative proceeding."144 HIPAA does not create a federal physician-patient privilege. Furthermore, HIPAA is silent on the subject of ex parte communications with treating physicians.145
HIPAA preempts state law concerning ex parte communications with treating physicians if the HIPAA privacy regulations are more stringent than state law. Thus, even in states that typically permit ex parte communications between lawyers and treating physicians, HIPAA may operate to limit them. HIPAA does not preclude such communications altogether...
