We’ve blogged before about the importance of both sides in personal injury litigation – and especially drug/medical device product liability litigation involving the learned intermediary rule – having equal rights to talk to treating/prescribing physicians. We’ve praised courts that have gotten this issue right – most significantly the New York Court of Appeals in the Arons case. We’ve debunked what we consider a spurious argument HIPAA (the Health Insurance Portability and Accountability Act) interferes with state law on this subject, since that statute specifically excludes civil litigation from its purview.
But we know, because we’re involved in litigation all over the country, that not every (probably not even most) state agrees with us. We also know that in federal MDLs, even though discovery procedure is a procedural issue (e.g., Williams v. Rene, 72 F.3d 1096, 1103 (3d Cir. 1995); Weiss v. Astellas Pharma, US., Inc., 2007 WL 2137782, at *3-4 (E.D. Ky. June 25, 2007), and the cases we cited here), in practice a lot of judges defer to state practice in this area. So it’s important for defense counsel to know – realistically, and regardless of our philosophical views on the matter – where we can talk to the docs informally, and where we’ll get in trouble just for doing what the other side is allowed to do.
Ten years ago, or even less, we’d have agitated for one of the ABA’s litigation committees to prepare a 50-state survey on the question – and there might even be one of those, but we don’t know of anything recent. We couldn’t find anything on the ABA’s website.
But one of the great things about being bloggers is we don’t have to go through all that. If we think something’s important, we can do it ourselves, and so we are.
Here’s what we know about – Okay, what we think we know about – the status of informal defense access to treating physicians in the fifty states.
Remember, you get what you pay for, so don’t even think about using us as the be all and end all on this (or any other) subject. If you do, please see our disclaimer. Consider what we’ve done here more of a jumping off point.
Also, if you think we didn’t get your state right, please let us know. We’ve been flamed before, so we don’t mind all that much.
___ S.W.3d ___, 2015 WL 3653447, at *7-8 (Ky. June 11, 2015), the court rejected a HIPAA-based challenge to the practice.
979 F. Supp.2d 780, 784 (E.D. Mich. 2013).