It has long been the law in many states that if a patient files suit for personal injury his or her treating physicians are free to discuss the patient’s medical condition with lawyers for the other side. Courts have reasoned that by filing a lawsuit for personal injuries the patient put his medical condition at issue and thereby waived the doctor patient privilege. Based on that rule it has been customary for defense counsel to contact treating physicians and have "informal" conversations about the plaintiff’s protected health information.
In medical malpractice cases these “informal” conversations are especially worrysome. Frequently your doctor is a friend of the doctor you are suing and almost always your doctor is sympathetic to his colleague whom you have sued. This sympathy can cause your doctor to join sides with the defense without your knowledge. I have had cases in which treating physicians have secretly been hired by the defense to review material helpful to the defense position in anticipation of the doctor giving trial testimony favorable to the defense. Having your doctor testify that the defense experts are correct and your experts are wrong is potentially devastating before a jury.
Many courts have ruled that HIPAA prohibits these informal conversations at least without the consent of the patient or an order specifically allowing ex parte interviews. Even in those jurisdictions you and/or your lawyer should notify your doctors in writing that you do not want them to talk to anyone associated with the defense without your lawyer being present. Your objection may not prevent the contact but it should serve as a deterent. Furthermore, what hard does it do? If the defense merely wants to find out what the doctor knows having your representative listen in will save the doctor from having to say it twice. If the defense wants to mold your doctor’s opinions and/or testimony having a representative present will limit that conduct.
Cumberland School of Law, Cum Laude graduate Peter F. Burns practice areas include business litigation will contests, medical malpractice, legal malpractice, and other matters of complex civil litigation. Mr. Burns is licensed to practice before the United States Supreme Court and is a Certified Alabama Mediator; Board-Certified Civil Trial Advocate, National Board of Trial Advocacy, and a member of national and state Legal associations.