Can the Defense Lawyer Call My Doctor??

Can A Defense Lawyer Talk To My Treating Physician???

The answer in Missouri state courts is simply, no.  Plaintiff’s lawyers, like Michelle M. Funkenbuch, have long sought to preclude defense counsel from privately speaking with their client’s treating healthcare providers.  The damage and influence a defense lawyer can do by talking to the treating physician should not be underestimated.  After the passage of the Health Insurance Portability and Accountability Act (HIPAA) in 1995, we  as trial lawyers relied on HIPAA to argue that such ex parte communications were now prohibited by federal law.  Our efforts have had inconsistent results, but we scored a huge victory in Missouri in 2010 inState ex rel. Proctor v. Messina, 320 S.W.3d 145 (Mo. banc 2010).  There, despite holding that HIPAA did not preempt Missouri law which had permitted ex parte communication with a litigant-patient’s physician, the Missouri Supreme Court nonetheless used HIPAA to prohibit a trial court from entering an order allowing defense counsel to engage in ex parte communication, effectively precluding defense counsel from informally meeting with a plaintiff’s treating health care providers in Missouri state court actions.

Before HIPAA: Missouri Law on Ex Parte Communication

When considering ex parte communication before the passing of HIPAA, the Missouri Supreme Court held “ex parte communications with plaintiff’s treating physicians are not prohibited by the statute nor by the common law …” Brandt v. Pelican (“Brandt I”), 856 S.W.2d 658, 663 (Mo.banc. 1993). The court noted the “treating physician is first and foremost a fact witness,” and held litigant-patients should not be allowed to use the patient-physician privilege to preclude ex parte communication with treating physicians after placing their medical condition at issue in a lawsuit. Brandt v. Medical Def. Assoc. (“Brandt II”), 856 S.W.2d 667, 673 (Mo.banc 1993). In so deciding, the Brandt court focused its analysis on the patient-litigant waiver of the patient-physician privilege, and observed the “guiding principle” of Missouri law that “once there is a waiver, it is a full waiver.” Id. at 671-72. In addition to noting that the medical privilege covers only matters that remain confidential, the court sought to preclude a patient from strategically turning on and off the privilege so as to gain an advantage in litigation. Id. at 672-73.

However, the Missouri Supreme Court refused to require plaintiffs to execute authorizations specifically authorizing their treating physicians to speak to defense counsel. Brandt I, 856 S.W.2d at 662 (citing State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 393 (Mo.banc 1989)). Thus, the Supreme Court struck a balance whereby patient-litigants would not be forced to authorize ex parte communication to which they objected, but neither could they prevent their treating providers from choosing to engage in ex parte communication concerning protected health information (PHI) which was subject to the litigation waiver.  Rarely was it the case that the treating physician went out of his/her way to speak with defense counsel, but it did happen from time to time when zealous defense attorneys paid to meet with the treating doctors or relentlessly called them.

The Proctor case gave plaintiffs the ability to preclude ex parte communication despite the patient-litigant waiver. Although the court did not explicitly overrule any precedent, its interpretation of HIPAA, in effect, did just that.

The Current Missouri Law Under Proctor

Proctor‘s specific holding was that a trial court lacks the authority to issue an order advising non-party healthcare providers that they have the option to engage in ex parte communication with defense counsel about PHI at issue in pending litigation. Proctor, 320 S.W.3d at 157. The court reasoned that HIPAA provided a prohibition of such disclosures that had not previously existed. See Id. at 153. Therefore, unless specifically authorized by an exception to HIPAA, such as the express authorization of the patient pursuant to 45 C.F.R. §164.508, ex parte communication could no longer occur in Missouri. Id. at 153-54.

The trial court had cited 45 C.F.R. §164.512(e)(1)(i) as authority for its order, which allows disclosure of PHI “in the course of any judicial … proceeding in response to an order of a court …” Id. at 154. The Missouri Supreme Court disagreed this HIPAA exception applied, concluding its “plain and ordinary language” did not authorize the disclosure of PHI without the express authorization of the patientId. at 155. The court narrowly defined the regulation’s phrase “in the course of any judicial proceeding” to mean “any official proceeding in court, or any proceeding authorized by or held under the supervision of a court,” and only those in response to a “formal process,” such as a subpoena or discovery request. Id. at 155-56.

Concluding that ex parte communications were not “judicial proceedings” “because the trial court has no general oversight of the meeting or any control over it,” the Proctor Court held §164.512(e) did not apply to ex parte communications. Id. at 157. The court added that “no regulation in the HIPAA framework” authorized a Missouri trial court to issue an order permitting a physician to divulge PHI in an ex parte setting. Id. at 158.

On a side note, the Court also criticized the order as an improper “advisory opinion to persons and entities not parties to the underlying litigation.” Id. at 154 n.6.

Finally, the Court observed that nothing in the Missouri Rules of Civil Procedure authorized a trial court to issue orders governing informal ex parte communications, thereby intimating that trial courts were constrained to issue orders only as specifically authorized by the enumerated Rules. Id.

Having decided the trial court exceeded its authority by issuing an order attempting to govern informal discovery for these reasons, the Proctor court issued a writ of prohibition. Id. at 158. As a result, the only HIPAA-compliant avenue for any attorney to engage in ex parte communications with fact witnesses who happen to be treating health care providers is to obtain a HIPAA-compliant authorization pursuant to 45 C.F.R. §164.508 that specifically allows oral discussions. See Id. at 153-54. As the Missouri Supreme Court has refused to order a plaintiff to provide defense counsel with such an authorization, they are left with only formal discovery methods, such as depositions, to learn what these potentially critical witnesses may have to say. See Id. at 157-58.