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Ex Parte Communications With a Treating Physician

I.                    Ex Parte Communications with Treating Physicians – An Update

            Ex Parte communications with the plaintiff’s treating physician in a personal injury case has been the subject of many cases dating back to the 1996 decision in Boutee v. Winn Dixie, 674 So.2d 299 (La. App. 3rd Cir. 4/17/96) which prohibited such meetings unless conducted through normal discovery vehicles with notice to counsel for plaintiff. Lawyers representing health care providers in medical malpractice actions were quick to argue that such a prohibition did not extend to medical malpractice cases. Recent jurisprudence has rejected these arguments and confirmed the old rule in personal injury cases.
 
In Wood v American National Property & Casualty Ins. Co. 1 So.3d 764 (La. App. 3rd Cir. 12/23/08), the court upheld the trial court’s grant of a motion in limine which excluded evidence of a physician’s treatment of plaintiff for purposes of impeachment due to an illicit ex parte communication between defense counsel and plaintiff’s treating physician. In so doing the court reasoned:
 
Thus, [plaintiff] only waived her patient’s privilege as to her medical records with [her treating physician] in the limited context of testimony at trial or through the use of proper discovery methods. Id. at 768.
 
The Wood court relied upon its previous ruling in Coutee v. Global Marine Drilling Co., 04-1293 (La. App. 3rd Cir. 2/16/05), 895 So.2d 631 rev’d on other grounds, 05-0756 (La. 2/22/06), 924 So.2d 112. In Coutee, a non medical malpractice personal injury case, plaintiff’s treating physician was deposed by the defense regarding his opinions on plaintiff’s medical condition and work capacity. His physician opined that the plaintiff could not perform medium-heavy work. After the deposition, the physician had an ex parte meeting with defense counsel during which defense counsel presented him with documents and information not shown at his deposition. 
 
During trial, and at the surprise of the plaintiff, the doctor changed his testimony from what he stated in his deposition based on the information received at the ex parte conference with defense counsel. Subsequent to losing his lawsuit, Coutee filed suit against [his doctor]. Coutee alleged that [his doctor], by participating in ex parte communications with the defendant in his personal injury case, had (1) breached the physician-patient privilege; (2) intentionally inflicted emotional distress upon him; and (3) invaded his privacy.
 
After a bench trial on the merits of Coutee's claims against [his doctor], the trial court found that [his doctor] had breached the physician-patient privilege and that Coutee had shown that he was entitled to damages in the amount of twenty thousand dollars from [his doctor] for emotional distress. [His doctor] appealed that ruling.
 
The Third Circuit affirmed this ruling holding:
 
         Coutee did waive his right to keep [his doctor] from testifying, but he did not waive his right to keep [his doctor] from participating in an unauthorized, ex parte meeting with his patient's adversary and discuss his patient's relevant condition. As such, this statute still does not allow [his doctor] to breach his obligation to Coutee to uphold the physician-patient privilege. Id. at 646.
 
         The Louisiana Supreme Court reversed the affirmation of the trial court’s awarding damages for the ex parte disclosure finding that the damages suffered by Coutee were not caused by the ex parte communication. However, the Supreme Court did not discuss the waiver analysis contained in the discussion by the Third Circuit and thus the validity of such analysis remains unimpeached.
 
The most recent case involving the issue of ex parte communications with treating physicians did involve a medical malpractice case. In Ernst v. Taylor, 17 So.3d 981 (La. App. 3rd Cir. 2009), Ms. Ernst  claimed that her treating physician was allowed to testify about his treatment of her in violation of the health care provider-patient privilege found in La. Code Evid. Art 510 because the doctor and defense counsel met in private without notice to her or her attorney. Defendants argued that La. Code Evid. Art 510(F)(1) provided that there was no privilege related to factual matters pertaining to liability in medical malpractice claims. Defendants argued that defense counsel's meeting with the doctor did not concern her current treatment or physical condition.
 
The court held that the physician patient privilege was breached by the doctor. It reasoned:
        
There is no doubt that counsel for defense and [the doctor] discussed Ms. Ernst's physical condition. And while [the doctor] may not have been treating Ms. Ernst at the time of trial, his treatment of her was discussed as defense counsel and [the doctor] reviewed Ms. Ernst's medical records. Furthermore, on questioning [the doctor], defense counsel stated, “When you and I met, I told you all I wanted you to do was talk about your treatment of this patient; is that not true?” [The doctor] confirmed that as an accurate statement.
 
Clearly, Ms. Ernst's current treatment and physical condition were discussed with [the doctor]. As in Coutee, 895 So.2d 631, proper discovery methods were not followed, with notice given to Ms. Ernst's attorney as required by La. Code Evid. Art. 510(F)(2). The privilege was breached. Id at 987.
 
The court went on to state:
 
While [the doctor] did not specifically testify about the standard of care in this case, his testimony definitely had an impact on the standard of care issue. Having found that the trial court erred in admitting the testimony of [the doctor] which affected the standard of care issue, the jury's determination that [the defendant doctor] did not breach the standard of care is owed no deference, so we find it necessary to conduct a de novo review of the issues in this case; whether [the defendant doctor] breached the standard of care, causation, and damages.
 
This decision clearly demonstrates the potential dangers involved in attempting ex parte communications in a medical malpractice case. It also demonstrates that the same factors considered by the court in personal injury cases regarding patient-physician privilege also apply equally in a medical malpractice case.