You have filed a personal injury action (complaint) in federal or state court, seeking damages for injuries sustained in an auto accident or due to medical malpractice. And during the litigation discovery process, you disclosed the names of your treating physicians.
Now you have learned that the defense attorney representing the defendant driver or doctor and their insurance carrier has contacted your treating physicians without your knowledge or permission (by phone or email or in writing). This act by defense counsel is known as ex parte contact. And it is not permitted in many jurisdictions, including Virginia.
This article examines when and how an insurance defense lawyer can speak with your treating physicians. And what you can do when the defense attorney has an ex parte contact with your treating physician in violation of federal and state law.
Federal and (most) state laws now prohibit the informal discovery of protected health information unless you consent. This means the insurance company’s attorneys cannot speak with your attorneys privately, behind your back, to try to weaken your case. But you and your attorneys can talk with your doctors to strengthen your claim – and I recommend using this informal access to your advantage.
Keep reading to learn more about physician-patient confidentiality in civil actions based on negligence.
And if you have any questions about your tort claim, call me for a free consultation: (804) 251-1620 or (757) 810-5614. We are here for you and your family and will help you pursue every legal remedy available.
In evidence law, privilege refers to the right not to do something, such as turn over certain information.
The doctor-patient privilege (also called the physician-patient privilege) applies to confidential communications between you and your physicians. Its purpose is to encourage open communication between you and your doctor so that your doctor can identify (diagnosis) and treat your injury or disease.
You must demonstrate several things before asserting the physician-patient privilege in litigation.
First, the doctor, hospital, or medical provider must fall within the definition of health care provider under the applicable statute.
In Virginia, for example, the term health care provider includes a person, corporation, facility, or institution licensed to provide health care or professional services as a:
As you can see, other medical personnel who work under a physician’s supervision may fall within the privilege’s protection.
Second, you must have a professional relationship with the physician for the privilege to attach. This is why court-ordered physical examinations or workers’ comp defense medical examinations (IMEs) are not privileged.
Third, the communication you seek to protect must be related to advice given by the physician to the patient. Therefore, you cannot claim the doctor-client privilege to prevent testimony by a physician about the fact you consulted with the physician on a specific date.
However, there are many exceptions to the doctor-patient privilege that I explain later in this article.
Under the Supremacy Clause of the U.S. Constitution, federal law is “the supreme law of the land.” Therefore, when a federal statute conflicts with a state statute, federal law bumps state law. The doctrine applying this law is known as “federal preemption.”
However, HIPAA has a special preemption provision. Under the relevant exception, state law controls if it is “more stringent” than HIPAA”s requirements.
State law is “more stringent” than HIPAA if it gives a patient greater control over their medical records and information, meaning a broader ability to withhold permission and block disclosure of health information.
No.
The common law (judicial precedent created by judges) governs a claim of privilege unless the United States Constitution, a federal statute, or rules prescribed by the U.S. Supreme Court provides otherwise.
However, the common law in federal practice does not support a physician-patient privilege.
Further, the Rules of Evidence, U.S. Constitution, and other federal laws and regulations are silent on physician-patient privilege. Indeed, one court held that federal regulations create a procedure for defense lawyers and insurers to obtain authority to use medical records in litigation, not a privilege. I discuss this procedure below.
In contrast, most states recognize a physician-patient privilege – either by statute or under the state’s common law.
Congress enacted the Health Insurance Portability and Accountability Act (HIPAA) in 1996. HIPAA is a federal law that developed minimum national standards to protect the privacy of medical records and health information.
As part of HIPAA, Congress directed the Secretary of Health and Human Services (HHS) to create and publish regulations setting privacy standards for certain entities’ use and disclosure and disclosure of individuals’ health information (called protected health information). These regulations form the HIPAA Privacy Rule.
One of the Privacy Rule’s goals “is to ensure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well-being.” Thus, it tries to balance the use of the information for specific reasons while protecting a person’s privacy when seeking care and healing.
Federal regulations define health information as:
any information, including genetic information, whether oral or recorded in any form or medium, that: (1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.
No. HIPAA does not allow insurance defense lawyers to have ex parte contacts with a plaintiff’s treating physician to discuss protected health information.
Black’s Law Dictionary defines ex parte as something: Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest in the litigation.
Therefore, in personal injury actions, an ex parte communication refers to the defense lawyer’s (or claim adjuster’s) attempts to speak with your treating physicians, without you or your attorney present, to obtain information (facts or medical opinions) that could harm your lawsuit. For example, adverse counsel may ask the treating physician to write a causation letter blaming pre-existing conditions such as arthritis or degenerative disc disease for your symptoms or to state that you can perform light duty work when the reports state you cannot drive or return to any type of work.
Courts have held that an adverse counsel’s ex parte discussions with a treating physician regarding the scope of the physician’s care violates HIPAA.
This prohibition on ex parte contact between insurance defense attorneys and treating physicians includes oral information or records because of the definition of protected health information under HIPAA. Therefore, HIPAA applies to a defense attorney’s ex parte telephone conferences and in-person meetings with your treating physicians, as well as letters and emails.
HIPAA does not prohibit all ex parte communications with a treating physician for the defense lawyer. Instead, it allows the defense counsel to have such contact about topics that do not fall within the definition of “protected health information.”
For example, the defense lawyer can contact your treating physician to discuss serving a subpoena, negotiating fees for depositions or trial testimony, or scheduling the deposition.
Generally, a health care provider cannot use or disclose your protected health information unless you give the person seeking the information written authorization to receive it.
However, there are some exceptions to this general rule – situations where a written authorization or an opportunity to object to the information request is not required.
For example, a healthcare provider can disclose your protected health information to the extent the law requires such use or disclosure and complies with and is limited to such law requirements.
These permitted disclosures during judicial or administrative proceedings may be:
A health care provider cannot claim it received satisfactory assurances from a party seeking protected health information unless it receives from such party a written statement (usually a letter) and accompanying documentation showing that:
In the alternative, the party seeking your health information provided the health care provider with a written statement and documentation showing that the court entered a qualified protective order or that the party seeking your information has filed a motion for a qualified protective order.
A qualified protective order is a court order or stipulation prohibiting the defense from using your protected health information for any purpose other than the legal proceeding and requiring the return or destruction of the documents when litigation ends.
Like federal law, common law principles govern privileged communications under Virginia evidence law unless a statute directly provides the privilege.
Virginia has enacted such a statute addressing doctor-patient confidentiality in personal injury litigation – Code Section 8.01-399 entitled “Communications Between Physicians and Patients.“
Last amended in 2009, the purpose of this statute is to define the scope of discovery and trial testimony that a treating physician may be required to give when the plaintiff’s (patient’s) physical or mental condition is at issue in a civil action. It states:
A. Except at the request or with the consent of the patient, or as provided in this section, no duly licensed practitioner of any branch of the healing arts shall be permitted to testify in any civil action, respecting any information that he may have acquired in attending, examining or treating the patient in a professional capacity.
B. If the physical or mental condition of the patient is at issue in a civil action, the diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan of the practitioner, obtained or formulated as contemporaneously documented during the course of the practitioner’s treatment, together with the facts communicated to, or otherwise learned by, such practitioner in connection with such attendance, examination or treatment shall be disclosed but only in discovery pursuant to the Rules of Court or through testimony at the trial of the action. In addition, disclosure may be ordered when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice. However, no order shall be entered compelling a party to sign a release for medical records from a health care provider unless the health care provider is not located in the Commonwealth or is a federal facility. If an order is issued pursuant to this section, it shall be restricted to the medical records that relate to the physical or mental conditions at issue in the case. No disclosure of diagnosis or treatment plan facts communicated to, or otherwise learned by, such practitioner shall occur if the court determines, upon the request of the patient, that such facts are not relevant to the subject matter involved in the pending action or do not appear to be reasonably calculated to lead to the discovery of admissible evidence. Only diagnosis offered to a reasonable degree of medical probability shall be admissible at trial.
C. This section shall not (i) be construed to repeal or otherwise affect the provisions of § 65.2-607 relating to privileged communications between physicians and surgeons and employees under the Workers’ Compensation Act; (ii) apply to information communicated to any such practitioner in an effort unlawfully to procure a narcotic drug, or unlawfully to procure the administration of any such drug; or (iii) prohibit a duly licensed practitioner of the healing arts, or his agents, from disclosing information as required by state or federal law.
D. Neither a lawyer nor anyone acting on the lawyer’s behalf shall obtain, in connection with pending or threatened litigation, information concerning a patient from a practitioner of any branch of the healing arts without the consent of the patient, except through discovery pursuant to the Rules of Supreme Court as herein provided. However, the prohibition of this subsection shall not apply to:
1. Communication between a lawyer retained to represent a practitioner of the healing arts, or that lawyer’s agent, and that practitioner’s employers, partners, agents, servants, employees, co-employees or others for whom, at law, the practitioner is or may be liable or who, at law, are or may be liable for the practitioner’s acts or omissions;
2. Information about a patient provided to a lawyer or his agent by a practitioner of the healing arts employed by that lawyer to examine or evaluate the patient in accordance with Rule 4:10 of the Rules of Supreme Court; or
3. Contact between a lawyer or his agent and a nonphysician employee or agent of a practitioner of healing arts for any of the following purposes: (i) scheduling appearances, (ii) requesting a written recitation by the practitioner of handwritten records obtained by the lawyer or his agent from the practitioner, provided the request is made in writing and, if litigation is pending, a copy of the request and the practitioner’s response is provided simultaneously to the patient or his attorney, (iii) obtaining information necessary to obtain service upon the practitioner in pending litigation, (iv) determining when records summoned will be provided by the practitioner or his agent, (v) determining what patient records the practitioner possesses in order to summons records in pending litigation, (vi) explaining any summons that the lawyer or his agent caused to be issued and served on the practitioner, (vii) verifying dates the practitioner treated the patient, provided that if litigation is pending the information obtained by the lawyer or his agent is promptly given, in writing, to the patient or his attorney, (viii) determining charges by the practitioner for appearance at a deposition or to testify before any tribunal or administrative body, or (ix) providing to or obtaining from the practitioner directions to a place to which he is or will be summoned to give testimony.
E. A clinical psychologist duly licensed under the provisions of Chapter 36 (§ 54.1-3600 et seq.) of Title 54.1 shall be considered a practitioner of a branch of the healing arts within the meaning of this section.
F. Nothing herein shall prevent a duly licensed practitioner of the healing arts, or his agents, from disclosing any information that he may have acquired in attending, examining or treating a patient in a professional capacity where such disclosure is necessary in connection with the care of the patient, the protection or enforcement of a practitioner’s legal rights including such rights with respect to medical malpractice actions, or the operations of a health care facility or health maintenance organization or in order to comply with state or federal law.
Here are some takeaways from the statute and judicial opinions interpreting it:
Adverse counsel’s violation of HIPAA or state law by having ex parte contact with a treating physician is sanctionable. This means it deserves punishment by the court.
Potential sanctions when the defense attorney does not follow state or federal law governing your private health information include:
As the plaintiff in a motor vehicle crash or medical malpractice lawsuit, you have the burden of proof – having to show each claim element by a preponderance of the evidence (more likely than not).
Often this requires spending thousands of dollars in expert witness fees – to get the justice you deserve.
Do not make the insurance defense lawyer’s job easier by allowing unfettered access to your treating physicians. The defense attorney primarily wants one-on-one contact behind your back to prejudice your treating doctors against you and your claim.
You can worry about building your case and preventing the insurer from using aggressive tactics while trying to put your life back together.
Or you can hire an experienced personal injury lawyer to fight for your rights while you focus on healing.
Call now for a free consultation: (804) 251-1620 or (757) 810-5614. We have helped accident victims across the state btain top-dollar product liability and car crash settlements. And we want to help you.