State Bar of Arizona Ethics Opinions

99-03: Communication with Witnesses; Ex Parte Communications; Physicians
4/1999

Defense counsel in workers' compensation cases cannot contact the plaintiff's treating physician ex parte, unless, with advance notice, plaintiff expressly and unconditionally authorizes the contact. [ER 4.4]

FACTS:[1]

 

Defense counsel for a carrier in a workers' compensation case wants to contact the plaintiff's treating or consulting physician(s) without first obtaining the client's or the attorney's approval.

 

QUESTION PRESENTED

 

Whether defense counsel in a workers' compensation case ethically can conduct an ex parte interview of a plaintiff's treating physician?

 

RELEVANT ETHICAL RULES:

 

ER 4.4 Respect for Rights of Third Persons

 

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

 

RELEVANT PRIOR OPINIONS:

 

Opinion No. 78-23 (July 10, 1978)   

 

OPINION:

 

The propriety of ex parte interviews of a plaintiff's treating physician by defense counsel in a workers' compensation action is an unanswered question in Arizona.  While a similar question was examined in Opinion 78-23[2], more recent developments in case law as well as contemporary notions of the doctor-patient relationship would seem to invite a reassessment of the issue.

 

No physician-patient privilege was recognized at common law; however, the medical profession traditionally has guarded against breaches of patient confidence.  See Daniel P. Jones, Annotation, Discovery: Right to Ex Parte Interview with Injured Party's Treating Physician, 50 A.L.R. 4th 714,716 (1986).  Arizona has codified the privilege in statute, protecting the communications shared between the patient and doctor from examination in civil actions.  A.R.S. § 12-2235 (1974).  The purpose of the privilege is to ensure that the patient will receive the best medical treatment by encouraging full and frank disclosure of patient medical history and symptoms with their doctor.  See Ziegler v. Superior Court, 134 Ariz. 390, 656 P.2d 1251 (1982). Ultimately, the privilege prevents the physician from disclosing publicly information which might be humiliating, embarrassing, or disgracing to the patient.  See 50 A.R.L. 4th at 717.

 

However, the doctor-patient privilege is not absolute, and may be voluntarily waived.  Indeed, in workers' compensation cases, the waiver of the privilege is codified in statute, removing all information relevant to the determination of benefits from the scope of the privilege.  A.R.S. § 23-908(C).  However, this provision does not enumerate a full and complete waiver of all of the rights that a patient may possess under the privilege.  The statue specifically limits the extent of the waiver to only that information that is relevant to the action; medical information that is immaterial to the claim remains protected by the privilege.  See Id.  However, because neither the statute nor its accompanying case law addresses the issue of ex parte interviews with treating physicians, the issue in the context of workers' compensation cases remains unresolved.

 

The leading case in Arizona on the issue in general actions is Duquette v. Superior Court,  161 Ariz. 269, 778 P.2d 634 (1989).  In Duquette, the Arizona Court of Appeals considered whether ex parte communications with the opposing party's treating physician were permissible in a medical malpractice action.  The defense attorney in that case had conducted a number of ex parte interviews with the plaintiff's treating physicians without the express consent of the plaintiff, his parents, or his counsel.  See Id. at 270.  In defense of their action, the attorneys cited the waiver of the physician patient confidentiality privilege implicit in the filing of a medical malpractice case.  See Id. at 271, 272.  While there existed no statutory provision that enumerated a waiver of the privilege simply upon the filing of a suit, the court recognized the existence of an implied waiver that results when a plaintiff  "places a particular medical condition at issue." Id. at 272 [citing Bain v. Superior Court, 148 Ariz. 331, 714 P.2d 824 (1986)].

 

However, the court found that reliance on this limited waiver to support the general propriety of ex parte communications was misplaced.  See Id. Where the physician-patient privilege is impliedly waived, the waiver only extends to the discovery of pertinent medical information sought through the formal methods of discovery; it did not provide a blanket authorization for ex parte interviews.  See Id.

 

The court also examined the public policy considerations underlying the issue of ex parte interviews.  The court noted that some of the reasons dispositive in rejecting the use of such interviews included:

 

the broad privacy interest underlying the physician-patient relationship, the potential tort liability of physicians for breach of invasion of privacy, the potential that defense counsel may seek to improperly influence plaintiff's treating physicians or may discourage the physician from testifying, the duty of loyalty from the physician to the patient, and the view that discovery rules determine the extent of the physician-patient privilege.  Id. at 273

 

In addition, the court also looked at a number of other policy concerns that justified a prohibition on ex parte communications between treating physicians and opposing counsel.  Most important, the court found, was the confidential nature of the doctor patient relationship, and the "widespread belief that information given to a physician in confidence will not be disclosed to third parties absent legal compulsion."  Id. at 275.  While a patient may have waived the right to complete confidentiality by filing suit, any waiver in such an action would be confined to the conditions at issue in the immediate case. See Id.  Allowing ex parte interviews, the court held, would be inconsistent with protecting the remaining rights of the patient in that such interviews could expose intimate facts of the patient which are unrelated and irrelevant to the material and physical condition placed at issue in the lawsuit.  See Id. at 275 [quoting Petrillo v. Synex Laboratories, Inc., 148 III.App.3d 581 (1986)].  Such a situation would be impermissible as destructive to the fiduciary relationship that exists between physician and patient. See Id.

 

Moreover, a physician who participated in an ex parte interview potentially exposes himself to both professional and personal liability.  The court found that participation in an ex parte interview may constitute a breach of the physician's professional ethics, and any unintentional betrayal of a professional secret of privileged communication could subject the physician to potential tort liability.  See Id. at 276.

 

Finally, the court looked at the conflict that would be created with the voluntary Guidelines for Cooperation Between Physicians and Attorneys in Maricopa County if ex parte interviews were permissible.  While acknowledging that the Guidelines did not carry the force of a rule, the court was nevertheless persuaded by the instruction which required an attorney, if he wishes to discuss a case with a treating physician, to either present the physician with a signed release of medical information or subpoena the physician for deposition.  See Id. at 276 (citing Section IV (B)). 

 

Other jurisdictions that have considered the issue have arrived at a similar conclusion as the court in Duquette.  For example, in Loudon v Mhyre, 110 Wash.2d 675, 756 P.2d 138 (1988) the Supreme Court of Washington, examining many of the same policy concerns as were cited in Duquette, held that ex parte interviews were prohibited as a matter of public policy.  The court in that case was especially concerned with danger of inadvertent, yet potentially harmful, disclosure of privileged information.  See Id. at 678.  Citing the Supreme Court of Iowa, the Loudon court held:

 

Placing the burden of determining relevancy on an attorney, who does not know the nature of the confidential disclosure about to be elicited, is risky.  Asking the physician, untrained in the law, to assume this burden is a greater gamble and is unfair to the physician.  Id. at 678 (citing Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d at 357

 

The court also found that the threat that a physician would engage in an interview with opposing counsel would have an impermissible "chilling effect" on the physician patient relationship and would hinder further treatment. Id. at 679.

 

The issue has also been addressed recently by the federal courts, where it was determined that ex parte communications between defense counsel and plaintiff's treating physicians would be permissible only when the plaintiff specifically and unconditionally authorizes it.  In Horner v. Rowan Companies, Inc., 153 F.R.D. 597 (S.D. Texas 1994), the court was presented with a waiver of the doctor-patient privilege similar to that presented in Duquette. But see Doe v. Eli Lilly & Co., Inc., 99 F.R.D. 126 (D.D.C. 1983) (compelling a plaintiff to authorize ex parte interviews with his treating physician).  Similarly, the court found that the waiver did not completely abrogate the privilege; instead, it created an exception only as to communications or records relevant to the issue of a plaintiff's medical condition when litigation relative to that condition in instituted.  See Id. at 601.  Information not related to the condition at issue remained privileged. See Id.  In such a situation, the court found that the decision to waive the privilege as to unrelated matters remains with the patient; however, ex parte interviews would impermissibly shift the decision from the patient to the physician. See Id.  Honest and open communication between physician and patient, the court found, remains paramount to society's interest in obtaining information. See Id.  Thus, despite the conflict that the court found between the states and the circuits, "in order to preserve the integrity of the physician-patient privilege, defendants must be limited to the formal methods of discovery enumerated by the rules of civil procedure, absent the plaintiff's express consent to counsel's ex parte contact with his treating physicians." Id.

 

The only state to consider the question of ex parte interviews in the context of workers' compensation litigation also has determined that such communications are not allowable.  The North Carolina State Bar has determined that despite the existence of a statutory waiver provision[3], in workers' compensation cases ex parte interviews with the opposing party's treating physician are impermissible without the plaintiff's express consent.  See 1997 WL 331714 (N.C. St. Bar.)  (citing, Salaam v. North Carolina Department of Transportation, 122 N.C. 83, 468, S.E.2d 536 (1997).  The committee in that situation relied upon the overriding public policy interests in maintaining the confidential relationship between doctor and patient, the untenable position in which ex parte contacts place the non-party treating physician, and the adequacy of existing formal discovery devices.  See Id.

 

When considering the question presented here, the ultimate issue is whether or not the rationale applied by the court in Duquette is applicable in the context of workers' compensation.  As noted above, Arizona has not arrived at a definitive position on this issue, and given the inconsistency between Opinion 78-23 and the decision in Duquette, the issue remains unsettled.  While it is not controlling in this state, the approach taken in North Carolina is persuasive.  There does not seem to be any compelling reason to distinguish workers' compensation cases from the context of medical malpractice.  Indeed, the only clear distinction lies with the difference of the status of the waiver of the doctor-patient privilege; in workers' compensation it is enumerated, while in medical malpractice, as was noted in Duquette, it exists in case law.  This distinction does not seem to be momentous enough to warrant exposing physicians treating workers' compensation litigants to the myriad of concerns that accompany ex parte interviews.

 

Additionally, the scope of the waiver is not more extensive in workers' compensation cases; quite to the contrary, as § 23-908 (c) expressly states that information not relevant to the proceeding shall remain privileged.  Thus, the concerns stated by the court in Duquette are wholly applicable here.  The danger imputed to a physician, unfamiliar  with the legal scope of ex parte interviews as opposed to formal discovery, would be "contrary to the public policy favoring the fiduciary nature of the physician-patient relationship."  Duquette, at 275 (quoting Petrillo, 148 III.App.3d at 595)

 

Adequate measures for opposing counsel to avail themselves of information relevant to a claim are provided for by the discovery mechanisms set forth in Rules R20-5-141 through R20-5-146, Rules of Discovery for Industrial Commission Hearings.  It would not create a situation leading to an improper use of the privilege, as information relevant to a proceeding will continue to be available through traditional methods of discovery.  In fact, when considered in conjunction with the waiver of relevant medical information provided for in § 23-908(C), more than adequate assurances are provided to prevent such a situation where disparate access to information exists.  Preventing ex parte interviews does not preclude opposing counsel from availing himself of the "full panoply of discovery devices provided by the Rules of Civil Procedure." Id. at 274. 

 

These concerns are precisely why the Committee's prior opinion is no longer applicable.  78-23 states that as long as an attorney refrains from deliberately inducing a breach of the physician-patient privilege ex parte communications between an attorney and treating physician are permissible.  See Opinion 78-23 at 3,4 (1978).  However, this approach would seem to not be consistent with ER 4.4, which imposes a duty on an attorney to not  "use methods of obtaining evidence that violate the legal rights of a [third person]."  Allowing ex parte communications, in light of the concerns noted above, would potentially expose an attorney to a violation of ER 4.4.  The approach adopted in 78-23 fails to account for the possibility of inadvertent breaches of the physician-patient privilege, thereby violating the rights of both patient and physician.  This is a possibility that has been noted by the courts above.[4]  The uncertainty that exists in determining relevancy in such informal communications would seem to outweigh any benefits that they may return.

 

CONCLUSION

 

As a result, the proper ethical approach in Arizona should prohibit private ex parte interviews between defense counsel and plaintiff's treating physicians in workers' compensation cases, unless, with advance notice, plaintiff expressly and unconditionally authorizes it.



[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding.  ©State Bar of Arizona 1999

 

2 In that opinion, the Committee addressed the issue of whether an attorney could ethically solicit conversation about the opposing party with the opposing party's treating physician, finding that so long as an attorney does not attempt to induce a breach of the physician-patient privilege, such communications were permissible.

[3]The relevant section of N.C. statute reads: "No fact communicated to or otherwise learned by any physician...who may have examined the employee, or...been presented at any examination, shall be privileged, either in hearings provided for by this article or any action at law."  Similar to the wording of A.R.S. § 23-908, this section is considered an exception to the doctor patient privilege provided for by North Carolina statute § 8-53. See Salaam, 122 N.C. App. 87.

[4] It is noteworthy that one of the states that Opinion 78-23 relies on as an example of permitting ex parte communications has expressly abandoned that position.  As noted above, the supreme court of Washington has stated that due to the overriding policy concerns against it, counsel may not engage in ex parte contacts with the opposing party's treating physician.