This article explores the issue of defense counsel ex parte interviews with treating physicians, and proposes a resolution to standardize the practice that is equitable for all parties involved. Courts and legal scholars have commonly recognized that treating physicians in personal injury litigation are usually fact witnesses, albeit with special expertise, and allow plaintiffs unfettered access while defendants are relegated to a formal deposition which creates a fundamental imbalance in informational power. Moreover, there are significant arguments raised by the defense bar concerning efficiency and fairness. However, allowing defense counsel unlimited and unregulated access to treating physicians creates clear risks particularly the danger that doctors might inadvertently disclose privileged information.
Section I explores the threshold question of whether the interviews are outright prohibited by existing laws. Many courts and litigants suggest certain statutes or common law principles restrict or prohibit ex parte defense interviews altogether. Most notable are the patient-physician privilege and other confidentiality rules, as well as the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Section I concludes that, while these doctrines may be relevant to regulate ex parte interviews, they certainly do not prevent courts and legislatures from permitting them.
Section II discusses the law regulating ex parte defense interviews across both the federal and state systems. The current state of the law across jurisdictions is inconsistent and often confusing. Jurisdictions vary widely on whether ex parte interviews are allowed and jurisdictions that permit ex parte communications often have unclear rules for litigants. Inconsistency and confusion emerge from assumptions made about the effects of the doctrines discussed in Section I, or from arguments based on conflicting policy grounds. For example, many jurisdictions prohibit ex parte communications based on assumptions concerning the patient-physician privilege. Section II ends by using Nevada as an example of a jurisdiction with a confusing maze of rules based on unclear and potentially inapplicable grounds.
Section III attempts to wade through the policy arguments raised by various authorities in support of the methods each has used to regulate ex parte defense interviews. The purpose of analyzing the policies behind different approaches is for courts and legislatures to make informed decisions when regulating defense counsel treating physician interviews. Finally, the authors propose a comprehensive, uniform approach to regulating ex parte defense interviews. This solution attempts to balance the policy arguments raised by both sides of the bar as well as the courts.
Ultimately, this article does not suggest a perfect means of regulating these interviews. Rather, the authors urge legislatures and courts to consider the policy arguments raised by both sides of the bar when crafting a solution. Finally, and most important, legislatures and courts should create a measure of uniformity and clarity in this area by adopting a balanced, consistent mechanism for regulating ex parte defense counsel interviews.
31 J. Contemp. Health L. & Pol'y 35
Regalia, Joseph and Cass, V. Andrew, "Navigating the Law of Defense Counsel Ex Parte Interviews of Treating Physicians" (2015). Scholarly Works. 1231.