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.
Informal interviews are allowed in the First State, but only with prior consent or by court order. Green v. Bloodsworth, 501 A.2d 1257, 1259 (Del. 1985). In personal injury litigation, court orders will be routinely allowed if the plaintiff resists. Id. Any privilege is automatically waived by filing a personal injury action. Del. R. Evid. 503(3).
District of Columbia
Informal interviews are allowed in the District of Columbia. Street v. Hedgepath, 607 A.2d 1238, 1247 & n.8 (D.C. 1992) (adopting permissive rationale of Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C. 1983)). Federal courts after Street go along. Miller v. Hilton Hotels Corp., 1993 WL 210866, at *3, 995 F.2d 305 (D.C. Cir. 1993) (non-precedential). The DC bar recently issued an ethics opinion that a plaintiff’s attorney could request, but not instruct, a treater not to speak to opposing counsel.
There used to be a statute, Fla. Stat. §456.057(8), that courts in the Sunshine State had interpreted as forbidding informal physician interviews. Acosta v. Richter, 671 So.2d 149, 152 (Fla. 1996). That statute has been heavily amended, and if there’s still a flat prohibition, it’s now in subsection 7(a)
While informal interviews were allowed by statute in the Peach State, Ga. Code. 9-11-9.2, the Georgia Supreme Court held that the statute was preempted by HIPAA. Moreland v. Austin, 670 S.E.2d 68, 70-71 (Ga. 2008). All is not lost, however, since recently, in Baker v. Wellstar Health Systems, Inc., ___ S.E.2d ___, 2010 WL 2159372 (Ga. June 1, 2010), the court held that, although HIPAA applies, defendants may apply for a “qualified protective order” to allow informal interviews under HIPAA whether the plaintiff consents or not. Id. at *2-3.
The Aloha State hasn’t said “aloha” to this issue yet. We can’t say what Hawaii law is on informal defense interviews with treating/prescribing physicians. It’s a free country, which means things are allowed until the law prohibits them, so we’d would go ahead, but proceed cautiously. Be very careful to make sure a Hawaii doctor knows an interview is voluntary, do not get into irrelevant matters, etc. Dot your i’s and cross your t’s. You don’t want to be the one remembered for making bad law.
There’s not a lot of law in Idaho, but in Morris v. Thomson, 937 P.2d 1212, 1217 (Idaho 1997), the court stated “the discovery rules do not limit defense counsel’s access to [the treating physician], and the defense is free to speak to the witness if she is willing.” That’s good enough for us to say it looks like the Gem State allows informal interviews.
The Land of Lincoln hasn’t emancipated defense counsel to have equal rights with plaintiffs for informal discussions with treating doctors. Burger v. Lutheran General Hospital, 759 N.E.2d 533, 554-55 (Ill. 2001). Far from it. In Illinois, it was even held unconstitutional for the legislature to permit informal interviews by statute. Best v. Taylor Machine Works, 689 N.E.2d 1057, 1100 (Ill. 1997). Don’t do it unless you enjoy being held in contempt of court. Petrillo v. Syntex Laboratories, 499 N.E.2d 952, 962 (Ill. App. 1986).
Defense informal interviews with treating physicians are barred in the Hoosier State as well. “[E]x parte interviews with a party-patient’s health-care providers by opponent’s counsel impermissibly compromise the physician-patient privilege.” Cua v. Morrison, 626 N.E.2d 581, 582 (Ind. App. 1993), adopted & incorporated, 636 N.E.2d 1248, 1249 (Ind. 1994). Federal courts, however, have been more liberal in allowing informal contacts under the Federal Rules. E.g., Martin v. CSX Transportation, Inc., 215 F.R.D. 554, 557 (S.D. Ind. 2003); Eve v. Sandoz Pharmaceuticals Corp., 2002 WL 32153352, at *1 (S.D. Ind. May 16, 2002).
While we can’t say it’s 100% foreclosed, we would be very leery of conducting informal treater interviews in the Hawkeye State in light of Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353, 356-57 (Iowa 1986). Technically, Roosevelt Hotel held only that plaintiffs can’t be forced to consent to such interviews, but the opinion’s language is definitely not helpful. A later case allowed workers compensation defendants to hold all the informal interviews they want. Morrison v. Century Engineering, 434 N.W.2d 874, 876-77 (Iowa 1989). So it’s possible, if not likely, that there might be some flexibility here.
Federal courts in the Sunflower State routinely allow informal defense interviews with treaters. E.g., Harris v. Whittington, 2007 WL 164031, at *1 (D. Kan. Jan. 19, 2007) (describing practice as “well settled” and citing a bunch of cases). Kansas state courts don’t seem to have addressed the issue.
Go for it, guys. The Bluegrass State is amenable to informal defense interviews of treating physician. Roberts v. Estep, 845 S.W.2d 544, 547 (Ky. 1993); Davenport v. Ephraim Memorial Hospital, Inc., 769 S.W.2d 56, 62 (Ky. App. 1988); Weiss v. Astellas Pharma, US., Inc., 2007 WL 2137782, at *3 (E.D. Ky. June 25, 2007). In Caldwell v. Chauvin,
___ S.W.3d ___, 2015 WL 3653447, at *7-8 (Ky. June 11, 2015), the court rejected a HIPAA-based challenge to the practice.
There’s a statute in the Pelican State that limits the litigation waiver of the physician/patient privilege to certain specified “discovery methods.” La. C. Evid. §510(E). This limitation has been held to prohibit defendant’s counsel from interviewing plaintiff’s treating or prescribing physicians informally. Coutee v. Global Marine Drilling Co., 895 So.2d 631, 641-42 (La. App. 2005), rev’d on other grounds, 924 So.2d 112 (La. 2006). Watch out in federal court, too. In In re Vioxx Products Liability Litigation, 230 F.R.D. 473, 476 (E.D. La. 2005), an MDL judge extended restrictive Louisiana law to actions filed anywhere in the country.
There’s no state court precedent, but a federal court in the Pine Tree State held that physician-patient privilege, even though waived, prohibited informal defense interviews with treaters. Neubeck v. Lundquist, 186 F.R.D. 249 (D. Me. 1999).
Informal defense interviews with treating physicians are just fine in the Old Line State. Butler-Tulio v. Scroggins, 774 A.2d 1209, 1224-25 (Md. Spec. App.), cert. denied, 783 A.2d 221 (Md. 2001). A federal district court, Law v. Zuckerman, 307 F. Supp.2d 705, 711 (D. Md. 2004), construed HIPAA as overriding state law, but as we’ve discussed elsewhere, that’s a weak argument.
In the Bay State, we’d hold off on interviewing physicians informally in light of Schwartz v. Goldstein, 508 N.E.2d 97, 99 (Mass. 1987), stating that “an opposing party should not be free to engage in clandestine, unauthorized conferences with a plaintiff’s physician.” See Goldstein v. United States, 1995 WL 96959, at *1 (D. Mass. Feb. 6, 1995) (applying same rule in federal court).
Michigan has consistently allowed defense counsel to interview treaters informally. Domako v. Rowe, 475 N.W.2d 30, 36 (Mich. 1991); Davis v. Dow Corning Corp., 530 N.W.2d 178, 180 (Mich. App. 1995) (per curiam). While a non-precedential, unpublished opinion asserted that HIPAA preempted the litigation rules of the Great Lakes State, Belote v. Strange, 2005 WL 2758007 at *5 (Mich. App. Oct. 25, 2005), that opinion has not been followed. See Thomas v. 1156729 Ontario Inc.,
979 F. Supp.2d 780, 784 (E.D. Mich. 2013).
The North Star State’s gone back and forth. The current Minnesota physician/patient privilege would, if taken literally, forbid physicians even to give in-court testimony contrary to their patients. Minn. Stat. Ann. §595.02(1)(d). There’s an exception allowing a physician charged with malpractice to confer privately with his/her own counsel. Id. §595.02(5). We suppose this amendment was intended to overrule Blohm v. Minneapolis Urological Surgeons, P.A., 449 N.W.2d 168, 170 (Minn. 1989), which had allowed informal defense interviews under a prior iteration of the statute. The statute supported a blanket prohibition in In re Baycol Products Litigation, 219 F.R.D. 468, 473-74 (D. Minn. 2003). Baycol refused to follow Filz v. Mayo Foundation, 136 F.R.D. 165, 173 (D. Minn. 1991), which had allowed informal interviews as a matter of federal, rather than state, law.
In the Magnolia State, Mississippi Rule of Evidence 503(f) provides that a litigation waiver of the physician/patient privilege “does not authorize ex parte contact by the opposing party”). In Scott v. Flynt, 704 So.2d 998, 1006-07 (Miss. 1999), the court held that evidence obtained through an informal interview was inadmissible. We’d have thought that amounts to a prohibition, except that: (1) in Poole v. Avara, 908 So.2d 716, 725 (Miss. 2005), the court allowed the defendant to use a treater as an expert against a plaintiff/patient, and (2) in Griffin v. McKenney, the court dropped a footnote stating that Scott “in fact states that a defendant is not prohibited from speaking ex parte with a plaintiff’s physician,” but only that “information divulged by such communication is inadmissible.” 877 So.2d 425, 442 n.3 (Miss. App. 2003). This subsequent precedent leaves things sufficiently up in the air that we’d strongly recommend talking to a Mississippi lawyer about this before doing anything.
In Brandt v. Medical Defense Association, 856 S.W.2d 667, 673 (Mo. 1993), the court overruled prior precedent (State v. Ryan, 776 S.W.2d 389, 395 (Mo. 1989)), and allowed informal defense interviews with treating physicians. See also Brandt v. Pelican, 856 S.W.2d 658, 662 (Mo. 1993); State v. Dalton, 872 S.W.2d 888, 890 (Mo. App. 1994). Now, in the Show Me State, “[t]he decision of whether to engage in ex parte discussions with an attorney concerning medical information that is no longer subject to the physician-patient privilege belongs solely to the physician.” State v. Syler, 936 S.W.2d 805, 809 (Mo. 1997). But watch out, an intermediate appellate court in State v. Messina, ___S.W.3d ___, 2009 WL 3735919 (Mo. App. Nov. 10, 2009), has held that Brandt didn’t affirmatively decide anything, and that therefore HIPAA precludes informal interviews. We think that Messina is both wrong about HIPAA and a usurpation of the Supreme Court, but know it’s out there before you proceed.
It looks like informal interviews are allowed in the Treasure State. In Jaap v. District Court, 623 P.2d 1389, 1390 (Mont. 1981), the court held plaintiffs could not be ordered to consent to informal defense interviews, but didn’t seem to have any problem with the concept of informal interviews itself. Id. at 1392. Building on Jaap, the court in Ostermiller v. Alvord, affirmatively held that informal interviews were allowable. 720 P.2d 1198, 1200 (Mont. 1986) (“interview by defendant’s counsel can better be described as a means of reviewing a witness’s testimony than as a means of discovery. . . . [I]t was not error to allow the interview to take place”). However, in Hampton v. Schimpff, 188 F.R.D. 589, 590 (D. Mont. 1999), without citing Ostermiller, the court held that informal interviews were not allowed under Jaap. So be careful.
In the Cornhusker State there’s very little law. Informal interviews were allowed in Scott v. Drivers Management, Inc., 714 N.W.2d 23. 36 (Neb. App. 2006), but that was under a special statute concerning worker’s compensation. Our “free country” comments under Hawaii apply.
There’s a statute in the Silver State that provides, “[t]here is no privilege . . . as to written medical or hospital records relevant to an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense.” Nev. Rev. Stat. §49.245(3). Maybe that could be read to allow informal interviews, maybe not. Voluntary informal interviews were okay in Stewart v. Women in Community Service, Inc., 1998 WL 777997, at *3-5 (D. Nev. Oct. 7, 1998), but that decision was under federal, not state, law. Id. at *3. Informal interviews were allowed under the statute in Parker v. Upsher-Smith Laboratories, Inc., 2009 WL 418596 (D. Nev. Feb. 18, 2009), and plaintiff’s counsel sanctioned for interfering with them.
You can’t have informal interviews in the Granite State unless the other side agrees and opposing counsel is present. Nelson v. Lewis, 534 A.2d 720, 723 (N.H. 1987). Why bother?
The Garden State ostensibly allows informal defense interviews with treating physicians. Stempler v. Speidell, 495 A.2d 857, 864-65 (1985); In re Diet Drug Litigation, 895 A.2d 493, 504 (N.J. Super. 2005). However, parts of New Jersey have become “judicial hellholes,” and in some mass torts, New Jersey trial courts have systematically ignored Stempler, and refused to allow informal interviews at all. E.g., Smith v. American Home Products Corp., 855 A.2d 608, 625 (N.J. Super. 2003).
Informal interviews are a no go in the Land of Enchantment. Smith v. Ashby, 743 P.2d 114, 115-16 (N.M. 1987); Gomez v. Nielson’s Corp., 894 P.2d 1026, 1029 (N.M. App. 1995).
As we’ve already discussed at some length, informal interviews with plaintiffs’ treaters are (subject to notice and filling out some forms) allowed, and indeed encouraged, in the Empire State. Arons v. Jutkowitz, 880 N.E.2d 831, 837 (N.Y. 2007); see id. at 842-43 (rejecting HIPAA preemption).
The Tar Heel State may be a favorable defense forum in other respects, but not when it comes to informal treater interviews. North Carolina law prohibits informal interviews unless the plaintiff gives his or her express consent. Crist v. Moffatt, 389 S.E.2d 41, 45-46 (N.C. 1990).
North Dakota state courts have not ruled on whether defendants may have informal interviews with treating physicians. But federal courts have not been receptive. In Weaver v. Mann, 90 F.R.D. 443, 445 (D.N.D. 1981), the court interpreted the Federal Rules as precluding informal discovery, even while conceding that any privilege had been waived. In Bohrer v. Merrill-Dow Pharmaceutical, Inc., 122 F.R.D. 217, 218-19 (D.N.D. 1987), the court refused to compel plaintiffs to authorize informal interviews. In the past twenty-plus years, nothing in the Peace Garden State.
The Buckeye State has surprisingly little law on this subject for such a large jurisdiction. Federal courts go both ways. In Bouchard v. American Home Products Corp., 213 F.Supp.2d 802, 805 (N.D. Ohio 2002), the court found insufficient Ohio precedent to preclude an informal meeting between defense counsel and a treating physician. More than thirty years earlier, another federal judge said such contacts were not allowed. Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793, 800 (N.D. Ohio 1965) (applying state law). The state courts are essentially silent, while in In re American President Lines, Ltd., 929 F.2d 226, 227 (6th Cir. 1991), the court had nothing against informal interviews except that they couldn’t be timely scheduled to fit within the trial court’s discovery deadlines.
Defense counsel can have informal physician interviews in the Sooner State. Holmes v. Nightingale, 158 P.3d 1039, 1046 (Okla. 2007). There was no HIPAA preemption either. Id. at 1041.
There’s no case law on informal physician interviews in the Beaver State, but given the language of Oregon’s physician/patient privilege statute, Ore. Rev. Stat. §40.235(2), we doubt that informal discovery would be allowed, absent consent.
There’s no privilege, but under Pa. R. Civ. P. 4003.6, informal communication between defense counsel and a plaintiff’s treating physician is prohibited in the Keystone State.
We can’t go informal in the Ocean State either. R.I. Gen. Laws §5-37.3-4 (“Disclosure by a health care provider of a patient’s health care information which is relevant to a civil action brought by the patient against any person or persons other than that health care provider may occur only under the discovery methods provided by the applicable rules of civil procedure . . . . This disclosure shall not be through ex parte contacts and not through informal ex parte contacts with the provider by persons other than the patient or his or her legal representative”).
We think the Palmetto State permits informal interviews. A federal court so held. Felder v. Wyman, 139 F.R.D. 85, 88 (D.S.C. 1991). Brown v. Bi-Lo, Inc., 581 S.E.2d 836, 838 (S.C. 2003), doesn’t appear to be contrary, as it involved a statute that expressly restricted means of communicating with treating physicians in workers compensation proceedings.
We’d be reluctant to have informal interviews in the Mount Rushmore State. While not directly on point, Schaffer v. Spicer, 215 N.W.2d 134, 137 (S.D. 1974), cited cases hostile to informal discussions. In DeNeui v. Wellman, 2008 WL 2330953, at *3-4 (D.S.D. June 5, 2008), the court allowed a treater to have informal contact with his own counsel (how generous), but “agreed” in dictum that defense counsel could not.
The Tennessee Supreme Court prohibited informal meetings with treaters in Alsip v. Johnson City Medical Center, 197 S.W.3d 722, 724 (Tenn. 2006). The legislature in the Volunteer State has abrogated Alsip for medical malpractice actions, Tenn. C. Ann. §29-26-121(f), but that statute leaves counsel for product liability defendants out in the cold.
Pursuant to statute, Tex, Civ. Prac. & Rem. C. §74.052, informal interviews between defense counsel and plaintiffs’ treaters are permitted in the Lone Star State. Its application to informal interviews was confirmed in In re Collins, 286 S.W.3d 911, 919-20 (Tex. 2009). Furthermore, there’s no HIPAA preemption either. Id. at 920. One more reason to like litigating in (most parts of) Texas.
We just lost the informal communication issue in the Beehive State. Sorensen v. Barbuto, 177 P.3d 614, 619-20 (Utah 2008).
There’s no law in the Green Mountain State on informal physician-opposing counsel meetings. See Hawaii. Vermont’s a pretty tort-liberal state (see Wyeth v. Levine), so be careful.
We think that the clear implication of the Virginia Supreme Court’s decision in Maxey v. Hubble, 385 S.E.2d 593, 597 (Va. 1989) – reversing a verdict for “improper statements” that the defendant did something shady in having informal interviews with the plaintiff’s treaters – is that the Old Dominion permits such interviews. Nonetheless, a federal court interpreted Virginia law to prohibit what the court in Maxey had no problem with. McCauley v. Purdue Pharma, L.P., 224 F.Supp.2d 1066, 1069-70 (W.D. Va. 2002). Thus, be careful what you do in Virginia.
We can’t have informal contact with treaters in the Evergreen State under Loudon v. Mhyre, 756 P.2d 138, 140 (Wash. 1988), unless we’re in workers compensation proceedings. Holbrook v. Weyerhaeuser Co., 822 P.2d 271, 274-75 (Wash. 1992). Do it, and you’re liable to have your evidence excluded. Rowe v. Vaagen Brothers Lumber, Inc., 996 P.2d 1103, 1110 (Wash. App. 2000).
West Virginia took the top spot in the 2008 hellhole jurisdiction sweepstakes. Why should the Mountain State’s law on informal defense contact with treaters be any exception? It isn’t. State ex rel. Kitzmiller v. Henning, 437 S.E.2d 452, 455 (W. Va. 1993).
The Badger State frowns on informal interviews of treaters by defense counsel. Steinberg v. Jensen, 534 N.W.2d 361, 371 (Wis. 1995) (counsel “may not engage in ex parte ‘discovery’” with treaters, such as “a private question and answer session”). Informal questions must be in writing with a copy to opposing counsel. Id.
Wyoming law does not compel physicians to have informal interviews with defense counsel. Wardell v. McMillan, 844 P.2d 1052, 1065-67 (Wyo. 1992). Wardell pointed out that it was not addressing voluntary cooperation, however. Id. at 1067 n.15. On voluntary interviews, we’d like to think that the Equality State would follow its nickname. Our comment to Hawaii applies here.