Ex parte interviews of treating physicians – a subject near and dear to our hearts.  Specifically, we rail against those jurisdictions that deny defense counsel the ability to investigate their cases through informal contacts with probably the most relevant witnesses in the case – the plaintiff’s treating physicians – while allowing plaintiff’s unfettered access to the same.  It may be cliché but it really is an unlevel playing field, giving plaintiffs a distinct advantage.  Last summer we reported on two significant cases that work to balance the scales:  In Re Pelvic Mesh/Gynecare Litig., 43 A.3d 1211 (N.J. Super. App. Div. 2012) (here) and In Re: Zimmer NexGen Knee Implant Prods. Liab. Litig., 890 F.Supp.2d 896 (N. D. Ill. 2012)(here).  In both, plaintiffs tried to prohibit defendants from retaining as experts physicians who had also treated any of the plaintiffs.  Given that these are mass torts involving hundreds of plaintiffs – such a ban would have severely limited the defense pool of experts, and thereby the defendant’s ability to effectively defend the litigation.  Again, with no similar constraint on plaintiffs.  Fortunately, both courts recognized the imbalance.             

Today’s case builds on the same theme, but with a slightly different twist.  In In Re American Medical Systems, Inc. Pelvic Repair Systems Prod. Liab. Litig., __ F.Supp.2d __, 2013 WL 2318836 (S.D. W.Va. May 22, 2013), one plaintiff’s treating surgeon was also a long-time consultant to defendant AMS.  AMS sought an order permitting it to speak to the surgeon in advance of his deposition to prepare him to answer questions regarding his consulting relationship.  Id. at *1.  Plaintiff opposed, citing physician-patient privilege, HIPAA, and the body of case law prohibiting defense interviews of treating doctors.  In fact, plaintiff argued that all AMS wanted to do was “to get behind closed doors” with the doctor to “ensure that he will say what AMS wants him to say.”  Id. at *2.  The exact same could be said about plaintiff’s counsel wanting “to get behind closed doors” with treaters.  The major difference is they are allowed to.           

Now, we believe that once a plaintiff has filed a lawsuit placing his health at issue, physician-patient privilege and HIPAA should no longer limit access to any information concerning plaintiff’s health – including information obtained through informal interviews of his treaters.  The court gave a quick nod to this in a footnote.  Id. at *3 n.1 (noting that “HIPAA authorizes a physician to disclose . . . health information in civil proceedings” and “Georgia law recognizes a limited waiver of . . . privilege when a plaintiff has placed her medical condition at issue).  But, perhaps sensing just how steep the uphill battle would be to seek access to treaters equal to the access plaintiffs’ counsel have, AMS limited its request to a pre-deposition interview regarding only the surgeon’s consulting relationship with AMS.  Id. at *1.   Clearly this made a difference to the court.  Primarily, it removed as an obstacle to the defense motion case law prohibiting defendants’ ex parte interviews of treaters because those cases dealt exclusively with the doctor’s role as plaintiff’s treater.  Finding them inapposite to a treater/manufacturer consultant, the court turned to our two favorites from last summer.  The New Jersey Pelvic Mesh and Zimmer NexGen decisions considered the appropriateness – or inappropriateness as it turned out – of a complete ban on defense ex parte interviews where the physicians play dual roles and at least one of those roles is unrelated to the care and treatment of the plaintiff.  In the earlier cases it was the physician as a potential expert; here it was the surgeon as defendant’s long-time consultant.  And the result was the same – defendants are entitled to informal, ex parte contact with treaters, as long as they do not include “discussions regarding the care of an individual patient.”  Id. at *4.              

The court quickly and effectively dismissed both of plaintiffs’ primary arguments.  First, that defense counsel “might improperly influence the testimony of the physician.”  Id.   The court’s response – this cuts both ways.  The ability to interview witnesses to gather evidence is a part of all litigation and the way to deal with “improper influence” isn’t a ban on one party, but the imposition of sanctions if necessary.  Id.   Second, the physician has a “fiduciary duty to the patient.”  Id.   In other words, the court should prohibit a treater from testifying contrary to the interests of his patient.  Talk about uneven turf!  Much as plaintiffs have argued otherwise, “no party to litigation has anything resembling a proprietary right to any witness’s evidence.”   Id. (quoting Zimmer NexGen, 890 F.Supp.2d at 907).  This court, like the Zimmer and Pelvic Mesh courts, found it would be overstepping its authority to silence physicians “to avoid [their] taking substantive positions contrary to any patient’s interests in litigations.”  Id.  There may indeed be a conflict between a patient’s “medical interests” and his “litigation interests.”  And whether such a conflict exists is “a matter of professional judgment by the treating physician, not by the patient’s lawyers, or by the courts applying wholesale rules of prohibition and disqualification.”  Id.   Recognizing that the surgeon’s relationship with AMS long pre-dates his treatment of plaintiff, the court concluded that it “should not manipulate how the evidence unfolds,” even if that means a treater provides testimony that is contrary to plaintiff’s litigation interests.  Id.           

The playing field is still far from level, but with each decision like this plaintiffs' home field advantage takes a hit.  And, we’ll take that for now.