In our cases, we like to talk to the prescribing doctors whenever we can. Given the learned intermediary rule , the prescriber is almost always the most important witness in the case. While we almost always have questions relating to the plaintiff’s treatment, usually what we’re even more interested in is what the prescriber thinks of the drug itself.

  • Was s/he already aware of the claimed risk?
  • If the risk were controversial, had s/he been following the controversy?
  • Did s/he take the risk into account in deciding to prescribe and prescribe anyway?
  • Would the claimed risk materially alter his/her risk benefit analysis in this particular case? In any case?
  • Did s/he read the package insert (or the Physician’s Desk Reference, which is the same thing), or did s/he rely on other sources?
  • Where relevant, did s/he pay attention to the company’s sales representatives or ignore them?

Those are the kinds of information we really like to know from prescribers – how they judge the science; how they judge the drug; and how they judge the company. Favorable answers lead to summary judgment. Unfavorable answers point towards settlement.

Plaintiffs’ counsel like to talk to prescribers too. We’re sure they cover many of the same subjects, but we know from experience that a lot of them cover other topics as well:

  • Like how the statute of limitations on a malpractice claim might be allowed to expire if the perscriber were to testify to being “duped” by the drug company.
  • Like how the prescriber should read a sheaf of carefully selected derogatory material about the product.
  • Like how the prescriber should sign a peculiarly worded affidavit about what s/he knew and when (that somehow seems to fall apart under cross-examination).
  • Like how “irrelevant” information should be purged from the plaintiff’s file – things like drug-seeking, prior litigation, non-compliance with treatment, and psychotic episodes that “have nothing to do with this case.”
  • Like how much would the prescriber charge to be the plaintiff’s expert witness.

Because, by definition, there’s a physician/patient relationship between the plaintiff and his or her prescriber, the plaintiff’s lawyer can have all of these conversations with these critical fact witness in secret, and never has to let our side know that such talks have been going on.

We think we should have the same right. Whatever rules the plaintiffs get to play by should apply to us as well. What’s sauce for the goose should be sauce for the gander.

For as long as we’ve been practicing, however, plaintiffs’ counsel have done everything they can to thwart equal defense access to prescribing physicians under the same rules (or lack of rules) applicable to both sides. Unfortunately, they’ve gotten away with all sorts of discriminatory practices in far too many cases.

That’s why we were pleased last week when we first came across Weiss v. Astellas Pharma, US., Inc., 2007 WL 2137782 (E.D. Ky. June 25, 2007), in which the court leveled the playing field. Weiss involved the usual situation – plaintiff went merrily on his way, having all the private meetings with the prescribing physicians that counsel wanted, while claiming the right to prevent the prescriber (whom, we assume, was willing) from meeting with defense counsel under similar circumstances.

The defendant finally had enough and moved to compel the plaintiff to execute releases that would ensure that the prescriber couldn’t be sued if he met with defense counsel in the same informal way that he had been meeting with plaintiff’s counsel. Alternatively, the court (well, technically a magistrate) was asked to prohibit plaintiff’s informal – so-called “ex parte” visits by plaintiff’s counsel. Id. at *1.

The defendants argued that the relevant state, Kentucky, didn’t recognize a legal privilege applying to the physician/patient relationship, and even if it did, any privilege had been waived when the plaintiff filed suit and thus placed his medical condition at issue. Id.

That first question – about whether a privilege exists – is one on which the states are all over the lot, and it’s impossible to generalize. Some states recognize common-law privileges, others have statutes of widely different breadth, while still others haven’t recognized any privilege. According to the Weiss opinion, Kentucky falls into the third category. Id. at *2. It’s a particularly important issue because the Federal Rules require federal courts to adhere to state law with respect to privileges. Fed. R. Evid 501.

On the second question, however, there is general consensus that filing a personal injury lawsuit waives any physician/patient privilege to the extent that it involves a medical issue relevant to the case. The highest courts of many states have held precisely that. Alcon v. Spicer, 113 P.3d 735, 740 (Colo. 2005) (plaintiff “waive[s] the physician-patient privilege with respect to the injuries claimed in her lawsuit”); Henricksen v. State, 84 P.3d 38, 48-49 (Mont. 2004) (plaintiff “waived any physician-patient privilege as to a mental or physical condition in controversy”); Willoya v. State Dept. of Corrections, 53 P.3d 1115, 1124 n.38 (Alaska 2002) (“the filing of a personal injury action waives the physician-patient privilege as to all information concerning the health and medical history relevant to the matters which the plaintiff has put in issue”); Laznovsky v. Laznovsky, 745 A.2d 1054, 1067 (Md. 2000) (parent placing fitness at issue “did waive any physician-patient privilege”); Doe v. Orangeburg County School District No. 2, 518 S.E.2d 259, 261 n.7 (S.C. 1999) (“[b]y placing one’s mental or physical condition in issue, a party has done an act which is so incompatible with an invocation of the physician-patient privilege that the privilege is deemed waived”); Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 63 (Mo. 1999) (“most common” waiver of physician-patient privilege “involve[s] plaintiffs who voluntarily place their medical condition in issue by . . . alleging that they suffered physical or mental injuries”); Marsh v. Wenzel, 732 So. 2d 985, 990 (Ala. 1998) (“commencement of the action made the information that had passed between physician and patient subject to discovery and, therefore, caused a waiver”); Donovan v. Bowling, 706 A.2d 937, 940 (R.I. 1998) (after commencing litigation, plaintiff “was no longer entitled to the benefits of the patient-physician privilege”); Maynard v. Hereen, 563 N.W.2d 830, 837 (S.D. 1997) (“waiver of privilege in this case under [statutory physician-patient privilege] is absolute as to an opposing party”); Steinberg v. Jensen, 534 N.W.2d 361, 368 (Wis. 1995) (“the physician-patient privilege did not protect communications relevant to or within the scope of discovery”); Stigliano v. Connaught Laboratories, Inc., 658 A2d 715, 718 (N.J. 1995) (“[b]y bringing suit against . . . plaintiffs have waived the physician-patient privilege”); Nelson v. United States, 649 A.2d 301, 308 (D.C. 1994) (“a patient waives the privilege as to relevant evidence by filing a lawsuit which places in issue the patient’s medical condition”); Carson v. Fine, 867 P.2d 610, 618 (Wash. 1994) (once suit is filed “a patient . . . cannot insist on continued confidentiality from her physicians regarding the condition at issue based on the fiduciary nature of their relationship”); Vredeveld v. Clark, 504 N.W.2d 292, 300 (Neb. 1993) (“filing a personal injury claim waives the physician-patient privilege as to all the information concerning the health and medical history relevant to the matters which plaintiff has put at issue”); Pearce v. Ollie, 826 P.2d 888, 903 (Idaho 1992) (“plaintiff has waived any physician-patient privilege relating to her mental and physical condition in controversy”); Owen v. Owen, 563 N.E.2d 605, 608 (Ind. 1990) (“[w]hen a party-patient places a condition in issue by way of a claim, counterclaim, or affirmative defense, she waives the physician-patient privilege”); State v. Valley, 571 A.2d 579, 586 (Vt. 1989) (“by bringing an action for damages arising from the injuries the plaintiff claims to have suffered, the physician-patient privilege is waived”); Dillenbeck v. Hess, 536 N.E.2d 1126, 1135 (N.Y. 1989) (“a plaintiff waives the physician-patient privilege by commencing an action which puts plaintiff’s own physical condition in issue”); Nelson v. Lewis, 534 A.2d 720, 722 (N.H. 1987) (patient waives physician-patient privilege to relevant information by putting medical condition at issue); State v. Berry, 324 So. 2d 822, 827 (La. 1976) (“by bringing the action, [a plaintiff] waives his right to claim the privilege as to any physicians who have prescribed for or treated him for such injuries”); State v. Campbell, 500 P.2d 21, 33-34 (Kan. 1972) (“there is no privilege. . . in an action in which the condition of the patient is an element or factor of the claim or defense of the patient”); City & County of San Francisco v. Superior Court, 231 P.2d 26, 28 (Cal. 1951) (“if there had been a physician patient relationship, the privilege would be waived. . . by [plaintiff’s] bringing the action for personal injuries”).

The Weiss court determined that, since neither the state legislature nor the state courts had seen fit to create a physician/patient privilege, it was not the job of a federal court, sitting in diversity, to change state law. 2007 WL 2137782, at *2 (“declin[ing] to recognize a privilege where it has not been expressed in the general laws of evidence existing in the state or in legislative enactment”). Once the court (magistrate) had made that determination, the question whether to permit informal interviews with treating physicians was purely procedural – unless there is a prohibition grounded in a state-law privilege, federal courts are free to decide discovery issues under the Federal Rules of Civil Procedure. Id. at *3-4.

Once again, that’s a point for which there’s lots of law. In Williams v. Rene, 72 F.3d 1096 (3d Cir. 1995), for example, the court held the federal courts were not bound by a purely procedural local rule that restricted informal interviews with treating physicians and instead followed “time-honored and decision-honored principles, namely, that counsel for all parties have a right to interview an adverse party’s witnesses (the witness willing) in private, without the presence or consent of opposing counsel and without a transcript being made.” Id. at 1103. See also Patton v. Novartis Consumer Health, Inc., 2005 WL 1799509, at *3 (S.D. Ind. July 25, 2005); Eve v. Sandoz Pharmaceuticals Corp., 2002 WL 32153352, at *2 (S.D. Ind. May 16, 2002); Shots v. CSX Transportation, Inc., 887 F. Supp. 206, 208 (S.D. Ind. 1995); Evertson v. Dalkon Shield Claimants Trust, 1993 WL 245972, at *1 (D. Kan. June 2, 1993); Filz v. Mayo Foundation, 136 F.R.D. 165, 170 (D. Minn. 1991); In re Orthopedic Bone Screw Products Liability Litigation, 1996 WL 530107, at *2 (E.D. Pa. Sept. 16, 1996).

The question in Weiss thus became, whther under the guiding principles of the Federal Rules of Civil Procedure, was this type of “informal” discovery of prescribing physicians a good thing? The court held that it was:

[T]reating physicians are important fact witnesses, and absent a privilege, no party is entitled to restrict an opponent’s access to a witness, however partial or important to him. Treating physicians are percipient fact witnesses, and as such, the information and opinions they possess should be freely accessible to both parties as would be the case with any other ordinary fact witness.

2007 WL 2137782, at *5 (various internal citations and quotation marks omitted). That’s the position we like to see, and lots of courts have taken it.

“[A] party’s right to interview witnesses is a valuable right. Witness interviews are one of the primary investigative techniques.” Wharton v. Calderon, 127 F.3d 1201, 1204 (9th Cir. 1997). “Once a patient places his care and treatment at issue in a civil proceeding, there no longer remains any restraint upon a doctor in the release of medical information concerning the patient within the parameters of the complaint.” Orr v. Sievert, 292 S.E.2d 548, 550 (Ga. App. 1982). Informal interviews are:

less costly and less likely to entail logistical or scheduling problems; it is conducive to spontaneity and candor in a way depositions can never be; and it is a cost-efficient means of eliminating non-essential witnesses from the list completely.

Romine v. Medicenters, Inc., 476 So. 2d 51, 55 (Ala. 1985). Restricting informal physician depositions “hinders settlement negotiations and trial preparation by restricting the gathering of relevant evidence in an informal fashion, thus requiring the more expensive and time-consuming procedures of a formal deposition.” Williams, 72 F.3d at 1103.

“May one cry secrecy! secrecy! professional confidence! when there is no secrecy and no professional confidence? . . . To hold so leaves a travesty on justice at the whimsical beck and call of a litigant.” Brandt v. Pelican, 856 S.W.2d 667, 672 (Mo. 1993). Rather, the physician-patient privilege “was never intended to be used as a trial tactic by which a party entitled to invoke it may control to his advantage the timing and circumstances of the release of information he must inevitably see revealed at some time.” Street v. Hedgepath, 607 A.2d 1238, 1247 (D.C. 1992).

Counsel are entitled and expected to look for witnesses and to interview them. Their interviews constitute the paradigm attorney work product. . . . An informal interview may provide the best available substitute for [] a deposition to prepare for trial. . . . [T]he right to conduct [informal witness] interviews is taken for granted as a matter of federal procedure.
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[Judicial] discretion does not support a ruling. . .that allows one side unfettered and unsupervised access to important witnesses, yet prohibits such contact for the other side. None of these witnesses are represented by plaintiff’s counsel. None of them have been retained as testifying or non-testifying experts. . . . This is a matter of fairness and symmetry. Neither side owns these witnesses. Each side is free to contact them and to talk with them privately. The witnesses are free to make their own decisions about whether they will meet with anyone, and if so on what conditions.

Patton, 2005 WL 1799509, at *4-5.

Many other jurisdictions likewise recognize the benefits of informal interviews. See, e.g., Samms v. District Court, 908 P.2d 520, 525-26 (Colo. 1995) (“Informal methods of discovery not only effectuate the goals of the discovery process but tend to reduce the litigation costs and simplify the flow of information”); Steinberg, 534 N.W.2d at 371-72 (allowing informal interviews with treating physicians to afford a wide latitude of cost-efficient discovery); Heller v. Norcal Mutual Insurance Co., 876 P.2d 999, 1005 (Cal. 1994) (“disapprov[ing]” cases that “could be read to prohibit all ex parte contacts between a physician and. . .attorneys or insurers”); Lewis v. Roderick, 617 A.2d 119, 122 (R.I. 1992) (informal interviews are beneficial by reducing trial preparation time and expense of litigation); Domako v. Rowe, 475 N.W.2d 30, 33 (Mich. 1991) (encouraging open discovery to which both parties have a right); Morris v. Thomsen, 937 P.2d 1212, 1217-18 (Idaho 1987) (if plaintiff has not retained the treating physician as an expert witness, discovery rules. . .do not limit defense counsel’s access); Trans-World Investments v. Drobny, 554 P.2d 1148, 1152 (Alaska 1976) (“informal methods are to be encouraged, for they facilitate early evaluation and settlement of cases, with a resulting decrease in litigation costs, and represent further the wise application of judicial resources”); Butler-Tulio v. Scroggins, 774 A.2d 1209, 1216-17, (Md. App.) (refusing to create extra-statutory prohibition against informal interviews of treating physicians where patients have placed their medical conditions in issue); Hogue v. Kroger Store No. 107, 875 S.W.2d 477, 481 (Tex. App. 1994) (the “conclusion that [the treating physician] did not act improperly when he met privately with [defense] counsel was reasonable” since filing suit waived physician-patient privilege); Green v. Bloodsworth, 501 A.2d 1257, 1258-59 (Del. Super. 1985) (“This Court will not condone the use of the formal discovery rules as a shield against defense counsel’s informal access to a witness when these rules were intended to simplify trials by expediting the flow of litigation and to encourage the production of evidence.”); Eve, 2002 WL 32153352, at *2 (“[t]o require that the parties redepose each physician because the defendant wishes to clarify information as they prepare for trial would add an extra layer of costs to the trial preparation portion of this case, which is unwarranted”); Orthopedic Bone Screw, 1996 WL 530107, at *2 (allowing informal physician interviews in mass tort litigation “[b]ecause many states grant defendants the right to conduct informal discovery”); Bryant v. Hilst, 136 F.R.D. 487, 491 (D. Kan. 1991) (a patient who places his or her medical condition at issue forgoes right to preclude treating physicians from disclosing relevant information; interested parties should not be given complete control over categories of fact witnesses); Filz, 136 F.R.D. at 169-74 (informal interviews with treaters are a valuable component of discovery); Doe v. Eli Lilly Co., 99 F.R.D. 126, 128 (D.D.C. 1983) (“there are entirely respectable reasons for conducting discovery by interview vice deposition: it is less costly and less likely to entail logistical or scheduling problems; it is conducive to spontaneity and candor in a way depositions can never be; and it is a cost-efficient means of eliminating non-essential witnesses from the list completely”).

For all of these reasons, “to disallow a viable, efficient, cost effective method of ascertaining the truth because of the mere possibility of abuse, smacks too much of throwing out the baby with the bath water.” Langdon v. Champion, 745 P.2d 1371, 1374 (Alaska 1987). Likewise, in Stempler v. Speidell, 495 A.2d 857 (N.J. 1985), the New Jersey Supreme Court recognized that personal interviews are “an accepted, informal method of assembling facts and documents in preparation for trial” and that “[t]heir use should be encouraged…[to] reduce the cost and time of trial preparation.” Id. at 864. Plainly, allowance of informal interviews of treating physicians reflects a balanced approach founded in sound and widely-recognized policy concerns. “[P]olicy considerations which support giving plaintiffs inordinate control over a witness’s disclosures and allowing plaintiffs to monitor the work of defendants in preparing their case, act in favor of an unfair discovery process and are not persuasive.” Stewart v. Women in Community Service, Inc., 1998 WL 777997, at *4 (D. Nev. Oct. 7, 1998).

One argument that Weiss didn’t need to address – we assume because it was not strongly pushed – is what we consider the bogus claim that the Health Insurance Portability & Accountability Act of 1996 (“HIPAA”) somehow precludes litigants from informally interviewing physicians who are also potential witnesses. We’ve already exploded that argument at great length in a previous post, so we’ll not repeat ourselves here. Weiss did require HIPAA-compliant authorizations, 2007 WL 2137782, at *6, but we’ve found that’s preferable these days, since it’s what the people we want to talk to are increasingly accustomed to seeing.

Of the alternatives, we like the informal interview process the best – which should be obvious to anyone who’s read this far. But nobody always gets what s/he wants all the time. Thus, we’ve done this drill in different ways in different cases. You won’t hear us complaining (much) about this or that procedural hoop to jump through as long as one fundamental principle is recognized. Both sides have to play by the same set of rules. If that happens, we’ll be, if not content, than at least accepting, even if the ground rules are restrictive.

But if the plaintiffs get to do whatever they want, while the defendants are stuck having to play solely by the rules of formal discovery – as we’ve seen in all too many situations – don’t expect us to roll over and play dead about it. Where plaintiffs are allowed to claim some sort of proprietary type of right over access to prescribing physicians, they shouldn’t be surprised that we’re going to do what we can to challenge such one-sided litigation practices.

In Pennsylvania, for example, Bexis has to put up with a very one-sided state-court rule prohibiting informal physician interviews that was adopted in the dead of night without any public comment. He reports that defendants have had some success arguing that, because plaintiffs now have superior access to these witnesses, plaintiffs who don’t call prescribing physicians should be subject to an adverse “missing witness” inference. Bowman v. Plumbarama, 53 Pa. D. & C.4th 434, 437-38 (C.P. Philadelphia Co. 2001), aff’d, 797 A.2d 367, 2001 WL 34394456, at *2 (Pa. Super. 2001); Clark v. Frankford Hospital, 30 Pa. D. & C.4th 1, 14-15 (Pa. CP. Philadelphia Co. 1996), aff’d mem., 695 A.2d 433 (Pa. Super. 1997). That’s the kind of creative response to unfair rules we like to see. Even when forced to comply with unfair discovery procedures, the defense needs to do what it can to fight back.