Tuesday, June 9, 2009

ex parte contacts with physicians

Can a court compel a release to allow ex parte communication with a treating physician in a personal injury case?  No.

In the recent case State  ex rel Camillo,et al v Beck, No. ED 100427 (Oct. 15, 2013) plaintiff alleged injuries from an auto accident and sued the City of Bowling Green for the "subsequent actions of its employee."  The City obtained a court order compelling the release of medical information and allowing ex parte communication with the providers.  The court of appeals granted a writ of prohibition against ex parte communications and found the release overbroad.

Medical information is waived pursuant to 491.060(5) when the physical condition is an issue in the pleadings.  Ex-parte communications are another issue entirely. 

 State ex rel v. Proctor, 320 S.W.3d  145 (Mo banc 2010) Supreme Court ruled as a matter of first impression based on its interpretation of HIPPAA that a court in the personal injury case against a physician cannot compel or authorize ex parte discussions with non-party treating physicians outside the formal discovery provided in the rules of court in which courts may exercise oversight and control over "judicial proceedings." In the case the judge issued an order advising non-party treating physicians they could meet or decline to meet with counsel for the defendant, without the plaintiff or plaintiff counsel present because the plaintiff had waived any privilege with the health care provider. The Supreme Court found HIPPAA pre-emption, that the order created a risk to divulge protected health information outside the scope of any waiver, and the court exceeded its authority by releasing essentially an advisory opinion.  

The court of appeals addressed a similar issue regarding compelled releases for "any and all information." In State ex rel Colins v Hon. Rolden, 289 S.W.3d 780 (Mo. App. 2009) a medical malpractice case, the court of appeals supported a plaintiff's refusal to sign a medical authorization that allowed "any and all information" instead of limited to "medical records and bills", as the court construed the broader release to compel the treating doctor to allow ex parte communications with defense counsel contrary to several supreme court decisions.