Written by attorney Jennifer L Keel

Ex Parte Communication between Medical Malpractice Defendants and Plaintiff’s Treating Providers

No defendant is liable in tort for harm to a plaintiff absent a duty owed to the plaintiff. That duty may arise from any of a number of relationships between the parties, including, as discussed here, the relationship between a physician and her patient. This relationship creates a fiduciary duty, as well as an obligation of continuing attention, on the part of the physician. [1]

The existence of this special relationship also gives rise to the familiar physician-patient privilege. The privilege is designed to encourage full disclosure of information by the patient, by protecting the patient from the embarrassment that could arise from disclosure of her personal health information. [2] It operates by preventing the physician from disclosing information about the patient without her consent.

Colorado’s Legislature has codified this concept in C.R.S. § 13-90-107. Understandably, this statutory provision creates the opportunity for disagreement between parties in medical malpractice litigation. Plaintiffs put their medical condition into issue by bringing the lawsuit, and defendants must defend themselves against plaintiffs' allegations. Often, a patient’s confidential health information provides the means for both sides to prove their respective claims and defenses. While the statute does provide an exception for disclosure when the provider is sued in connection with his care, this should not be viewed as blanket authority for indiscriminant disclosure of information that would otherwise be protected by the privilege.

Colorado case law has refined the intent of this statute to some degree. The plaintiff in a medical malpractice action "impliedly waives any claim of confidentiality respecting that same condition" by pleading a medical condition or injury as the basis of a claim. [3] And while the statutory privilege may be waived only by the patient, the implied waiver of the lawsuit will suffice for purposes of C.R.S. § 13-90-107. [4] Thus, it is generally accepted that a defendant will be entitled to receive a plaintiff's medical records for a period of time pertinent to the claims and defenses. As these records are reviewed, however, the defense may desire to interview one or more of the plaintiff's treating physicians—ex parte. Not surprisingly, plaintiffs typically reject this idea, preferring to prevent such meetings. So arises the issue of ex parte communications with a plaintiff's treating providers.

To the chagrin of many plaintiffs, the courts have recognized that it may be appropriate to allow such ex parte meetings in order to "eliminate surprise at trial, discover all relevant evidence, simplify the issues, and promote the expeditious settlement of cases." [5] Such informal interviews can "effectuate the goals of the discovery process, reduce litigation costs, and simplify the flow of information." [6]

This position is not without merit because for every witness the defense is not permitted to speak with informally, the defense must obtain the interview through notice and a subsequent deposition, thereby conducting the interview on a more expensive, formal record. As such, a rule forbidding informal communication would necessitate expensive and time-consuming formal discovery methods which might be avoided. [7] By contrast, a rule permitting informal communications between a defense attorney and a plaintiff's treating physician ensures that both parties have access to an informal, efficient, and cost-effective method for discovering facts relevant to the proceedings. [8]

Whether or not the defense will enjoy the right to a private conversation with plaintiff's treating providers will depend on the specific facts of the case. The Court has concluded that the rules of discovery do permit a defense attorney to conduct informal interviews in the absence of a plaintiff or the plaintiff's attorney with physicians who have treated the plaintiff, but with limitations. The scope of such interviews must be confined to matters not subject to the privilege, and the plaintiff must be given reasonable notice of any proposed informal interview and the opportunity to attend. Notice provides the plaintiff the opportunity to be present and prevent the physician from inadvertently disclosing residually privileged matters, or to seek a protective order. [9]

With its decision in Reutter v. Weber [10] in 2007, the Colorado Supreme Court expanded the defense’s freedom to engage in ex parte meetings in one respect, but limited that freedom in another. Many lawyers had understood the prior holding in Samms to mean that the only opportunity a defendant had for a true ex parte meeting with any of plaintiff’s treating physicians arose when the plaintiff, given proper notice, elected not to attend. In Reutter, however, the Court revisited the idea of “residually privileged information" [11], and also explained that “Samms did not create a blanket rule that a plaintiff is always entitled to attend an interview of a non-party medical provider." [12] Rather, the plaintiff’s attendance at such an interview is only one of several measures that can be taken to protect against the erroneous disclosure of residually privileged information. The Court went on to imply that the plaintiff’s attendance is the preferred measure only in cases “where there is a high risk that residually privileged information will be divulged." [13]

In this respect, the defense’s entitlement to a truly ex parte meeting was expanded, by virtue of the explicit indication that the plaintiff did not necessarily have the right to attend. However, the Court outlined the limitation on such meetings, by pointing out that the statutory privilege does not apply to a medical provider "who was in consultation with a physician, surgeon, or registered professional nurse being sued on the case out of which said suit arises." [14] The Court interpreted the phrase “in consultation with" broadly, finding that “medical providers are "in consultation with" one another if they collectively and collaboratively assess and act for a patient by providing a unified course of medical treatment." [15]

This decision has been construed to mean that defendants are permitted to meet ex parte with providers who worked together in the treatment of the plaintiff for the injuries at issue in the lawsuit, unless those providers also possess residually privileged information that is in danger of being erroneously disclosed. Of course, the focus of the disagreements on this issue naturally falls to the meaning of the Court’s chosen language: “collectively and collaboratively assess and act for a patient by providing a unified course of medical treatment." This analysis is necessarily fact-specific, and must be considered on a case-by-case basis.

Nevertheless, the notice requirement outlined in Samms still applies. The rationale for this is aptly explained by the Ethics Committee of the Colorado Bar Association in Revised Ethics Opinion 71:

It is unreasonable to expect the treating doctor, unschooled in law and unfamiliar with the issues framed by the plaintiff's lawsuit, to make the decision as to what information is included within the plaintiff's waiver of the physician-patient privilege, as opposed to what information is still privileged. Counsel for the defendant cannot make this determination, since he or she has a duty of undivided loyalty to the defendant, not the plaintiff, and since, to make the determination, counsel for the defendant would have to know the substance of the privileged information. Counsel for plaintiff must be informed and given the right to object so that, if required, a court can decide the issue of whether the information in question is privileged." [16]

As a practical matter, this issue typically manifests in the form of a request by the defense to meet with certain providers. The plaintiff then analyzes whether any of the requested providers meet the criteria outlined in the case law and weighs the risk of erroneous disclosure of residually privileged information. Disputes that cannot be informally resolved then proceed to motion practice.

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[1] Restatement (Second) of Torts, § 874 cmt. a (1965).

[2] Williams v. People, 687 P.2d 950, 953 (Colo. 1984).

[3] Plaintiffs do not waive the physician-patient privilege with respect to all medical matters, however, and other information known to the physician that does not pertain to the condition or injury at issue in the lawsuit will remain subject to the privilege. Samms v. District Court, 908 P.2d 520, 525 (Colo. 1995);Clark v. District Court, 688 P.2d 3, 10 (Colo. 1983).

[4] Clark, at 8.

[5] Samms, 525-6, citing: J.P. v. District Court, 873 P.2d 745, 748 (Colo. 1994); Bond v. District Court, 682 P.2d 33, 40 (Colo. 1984).

[6] Samms, 526, citing: Trans-World Invs. v. Drobny, 554 P.2d 1148, 1152 (Alaska 1976).

[7] Doe, 99 F.R.D. at 128; Drobny, 554 P.2d at 1152.

[8] Bond v. District Court, 892 P.2d 33, 40 (Colo. 1984).

[9] Samms, 526.

[10] Reutter v. Weber, 179 P.3d 977 (Colo. 2007).

[11] While information known to the physician about the plaintiff/patient pertaining to the injuries claimed in the lawsuit can be disclosed under the exception provided in C.R.S. § 13-90-107, residually privileged information is information which has no bearing on the lawsuit and should remain protected by the physician-patient privilege.

[12] Reutter, at 979.

[13] Reutter, at 979.

[14] Reutter v. Weber, 179 P.3d 977, 981 (Colo. 2007) (emphasis added).

[15] Reutter, at 981.

[16] Revised Formal Ethics Opinion 71, citing: Jaap v. District Court, 623 P.2d 1389 (Mont. 1981) and Miles v. Farrell, 549 F. Supp. 82 (N.D. Ill. 1982).

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