• Can we Talk? Ex Parte Communication with Treating Physicians
  • August 26, 2010 | Author: Andrew R. McCumber
  • Law Firm: McCumber, Daniels, Buntz, Hartig & Puig, P.A. - Tampa Office
  • It has always been tremendously frustrating to lawyers defending healthcare facilities that plaintiff's counsel suing a facility, in part based on the actions of treating doctors not named as defendants, may speak privately to those physicians they are implicitly criticizing while precluding defense counsel from speaking privately with them. These providers often go into a deposition having heard only the plaintiff's position. Without the benefit of understanding both sides of the dispute, these physicians often unwittingly offer opinions based on unsupported or false assumptions as they can't or don't review the patient's records before providing sworn testimony. 

                Thankfully, Florida's Second District Court of Appeals continues to resist the Plaintiff Bar's efforts to apply the Physician/Patient Privilege found in §456.057 (8) to preclude communication between a hospital's Risk Management Department, hospital management and treating physicians.  In the recent Lee Memorial Health System vs. Smith case, Lee Memorial Health System (LMHS) sought appellate review of an order granting the plaintiff parent's Motion for Protective Order which prohibited LMHS from communicating with its employed physicians, who continued to provide medical care and treatment to the plaintiff child at LMHS who had allegedly been injured years prior by the medical negligence of other physicians employed by LMHS.

                The plaintiffs argued that the Physician/Patient Privilege provides for only limited exceptions under which otherwise privileged patient medical information may be disclosed; 1) to other health care providers in treating the patient, 2) when authorized by the patient in writing, 3) when required by subpoena, or 4) in a medical negligence action when that healthcare provider is or reasonably expects to be named as a defendant.  The proposed ex parte (outside of the presence of the plaintiffs or their lawyers) communications between lawyers for LMHS and the LMHS employed physicians who were providing subsequent medical care and treatment at LMHS admittedly did not fall within any of these four (4) limited statutory exceptions to the Physician/Patient Privilege.  Plaintiffs relied on a continuing line of cases out of the Fourth District which strictly construe the Physician/Patient Privilege and have been aggressively utilized, for example, to prevent attorneys employed by the University of Florida's Self Insurance Program from discussing a plaintiff/patient's medical condition or history with lawyers hired by the Self Insurance Program to represent other University of Florida physicians at their depositions.  Relying on this strict construction precedent, the First District Appellate Court has held that the physician/patient privilege controls over challenges by these physicians, asserting that this application of the Physician/Patient Privilege violates a physician's constitutional right to counsel which is protected by the "free speech" clause of the First Amendment and the Due Process Rights of these physicians.

                The Second District Court of Appeal has continued to be sympathetic to the arguments of healthcare employers that they must be permitted to communicate within the organization about the medical condition and history of all individuals being treated by the healthcare organization.  In the Lee Memorial vs. Smith decision, the Second District concluded that the Physician/Patient Privilege did not as a threshold matter apply to communications between the hospital system's representatives and employed physicians because these communications were not "disclosures" that triggered the privilege.  The Court explained that a doctor is not revealing a patient's confidential patient information in the sense contemplated by the statute simply by discussing information obtained in the course of that physician's employment with other employees or agents within the same healthcare organization.  The Second District Court of Appeal correctly recognized the ongoing role and obligation imposed on hospital management for generally monitoring care provided within the hospital and establishing standards for providing such care.  In an apparent effort to avoid a clear conflict with the First District, however, the Court in Lee Memorial distinguished the University of Florida cases by finding that the physicians in those cases were not actually employees of the particular defendant hospital (only insured under the same statutorily required insurance program) unlike the situation presented to the Second District in this case. 

                In recognition of this potential loss of a tactical advantage, many trial lawyers actively steer their clients away from situations in which they continue to seek care and treatment from health care facilities which they are alleging have previously committed malpractice.  Aside from providing the defense the obvious argument that the asserted negligence could not have been very bad if it did not even prompt a change to a different healthcare provider, plaintiff lawyers don't want the defense lawyers to have the same access to their client's treating physicians they have.  As a policy matter, healthcare organizations can only act through their agents and they must have a continuing ability to manage the care being provided in the facility to all patients, including those who have chosen to sue.  Unfortunately for plaintiff lawyers, this decision by a plaintiff/patient to return to a facility alleged to have been negligent for treatment does allow agents of that provider to speak with those providers about this ongoing care.  This ability is not impacted by the existence of a pending malpractice action.

                The ability of healthcare providers to work with their counsel remains an area insufficiently addressed by existing statutes.  It is difficult to understand how an alleged murderer is constitutionally entitled to unfettered communication with legal counsel but a physician in the current litigious environment cannot seek assistance from legal counsel when being involuntarily dragged into the court system to provide sworn testimony in matters which always have the potential for eventually involving those providers.

    For more information, please contact Andrew McCumber at [email protected]