The Supreme Court's holding on ex parte communications with a claimant or employee's treating physician
The Supreme Court previously recognized the existence of an implied covenant of confidentiality between a doctor and a patient. The implied covenant of confidentiality arises out of the original contract for treatment and for payment for medical services. This precludes a doctor's informal discussions with anyone besides the patient on the patient's medical care. In order to talk with a physician, the person wanting to talk about a patient's care must obtain consent from the patient or the patient's representative. The implied covenant between a physician and their patient bars physicians from releasing any confidential information gained through the patient physician relationship without the patient's prior approval. This implied covenant of confidentiality in the patient physician relationship applies to treating physicians in workers' compensation cases.
The Tennessee Attorney General's opinion regarding the use of nurse case managers in workers' compensation cases.
According to the Tennessee Attorney General, Overstreet does not prohibit ex parte communications between a physician and a nurse case manager who is working pursuant to the Tennessee Workers' Compensation Act. Therefore, nurse case managers may communicate with doctors if they are operating pursuant to the Workers' Compensation Act.
Therefore, employers, insurers, and defense attorneys, or their agents, representatives and employees may not communicate with an employee's treating doctors in an ex parte situation, whether the communication is oral or written. If any communication is made up with a treating physician, the employee or the employee's representative needs to be made aware of any intent to communicate with a treating physician before the communication occurs. However, nurse case managers may be used for obtaining information from treating physicians so long as they are operating in compliance with the Tennessee Workers Compensation Act.
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