Have you ever noticed how you notice the same thing everywhere when you’re thinking about it? If you’re contemplating purchase of a station wagon, you see station wagons all over the place (sort of like the parking lot of a 1970’s Bobby Sherman concert).

We’ve been thinking about ex parte interviews with treating doctors. We’re working on them for paying clients. We blogged about a recent case here. And what do we get?  A reader sent us a November 2009 unpublished decision from a Missouri appellate court, State ex rel. Proctor v. Messina, 2009 WL 3735919 (Mo. App. W.D. Nov. 10, 2009). Sorry to say it, but we like this Missouri opinion even less than we like station wagons.

Before we get to the grisly details, let’s review the basics about ex parte interviews of doctors:

• We like them. What treating doctors say is terribly important. Some jurors toss out the competing expert opinions and trust the treaters. The treaters developed their opinions in the course of treating a real human being and they made important – maybe even life-and-death – decisions. Their patient’s health, and their own reputation (and malpractice exposure) was on the line. It’s music to our ears when treaters say that the plaintiff needed the drug, the drug helped the plaintiff, the drug did not hurt the plaintiff, and, knowing what the doctor knows today, the doctor would still prescribe that drug to plaintiff.
• We really don’t like an unlevel playing field. It’s a huge litigation advantage if the plaintiff’s lawyers can talk to the doctors before depositions but the defense lawyers cannot. It’s especially vexing if the plaintiff’s lawyer is spending time with the doctor saying things like, “My client is not suing you – yet. And he doesn’t want to. Etc”. And that “Etc” is big. We’re not saying anybody is doing anything unethical. But there’s some pretty aggressive sausage-making out there. Or boudin. Or hot links. (It all depends on where the plaintiffs’ lawyers call home.) Further, plaintiffs’ lawyers like to trot out internal company “hot docs” or call notes in an effort to anger the doctors and enlist them as oath-helpers. That’s why the recent In re Ortho Evra Products Liability Litigation, MDL No. 1742 (N.D. Ohio Jan 20, 2010) decision furnishes some relief. It tells plaintiff lawyers they can discuss only their patient’s condition with doctors; they cannot practice their closing argument in front of the poor treaters.
• In terms of a level-playing field, we prefer both-sides-can-talk to neither-side-can-talk. It’s better if both sides can make an early assessment of the case. Also, as the first amendment honchos like to say, the best remedy for bad speech is more speech, not restrictions on speech.

The Proctor case locks in the unlevel playing field, and for all the wrong reasons. It ends up saying that HIPAA stops defense lawyers from talking with doctors, even about issues that the plaintiff has put fully in play in the litigation, and that such HIPAA rule is either consistent with Missouri law or, if it isn’t, it preempts it. It is a bad result that is badly reasoned.

To begin with, the Proctor court acknowledges that under existing Missouri precedent, Brandt v. Pelican, 856 S.W. 2d 658 (Mo. banc 1993) (Brandt I), and Brandt v. Med Defense Assocs.. 856 S.W. 2d 667 (Mo. banc. 1993) (Brandt II), “there was no statutory basis in Missouri for concluding that voluntary ex parte communications between defense counsel and plaintiffs counsel were prohibited.” Proctor, 2009 WL 3735919 at *7 (emphasis in original). No great revelation there; we said that much in our 50 state survey on ex parte communications.

Well, now we know the court hasn’t read our blog, because we’ve already made a compelling argument that HIPAA does not preempt state litigation practice on ex parte communications with doctors. Missouri, which had been a safe, friendly place for ex parte communications with doctors should remain so. But alas.

The Proctor court first says preemption isn’t necessary, because Missouri law does not require ex parte contacts. Rather, it is silent. And HIPAA harmonizes perfectly nicely, thank you, with such silence. But even if there is any conflict, then HIPAA preempts. This despite the presumption against preemption. This despite the government’s clear statement that HIPAA was “not intended to disrupt current practice whereby an individual who is a party to a proceeding and has put his or her medical condition at issue.” 65 Fed. Reg. 82462, 82530. The better reasoned opinions on this subject (from, for example, New Jersey and New York) have concluded that HIPAA does not preempt state discovery practices regarding informal treater interviews. See our discussion here.

Look, it’s pure double talk for the Proctor court to say it’s not really deciding preemption, but if it is, then it’s all for it. Existing Missouri law permitted ex parte communications. Now, courtesy of HIPAA, such communications are verboten. Sounds like preemption to us.

But we think the main problem with the Proctor decision is its crabbed reading of HIPAA’s exceptions. HIPAA permits disclosure “in the course of any judicial … proceeding” or “in response to an order of a court,” or “[i]n response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court.” 45 C.F.R. §164.512(e)(1)(i)(ii).

Under any ordinary understanding of the litigation process, or of plain English, an ex parte communication with potential witnesses could find a home in one of those exceptions. But the Proctor court says that a “judicial proceeding” is limited to proceedings where the court is actually present or where the court somehow empowered the proceeding to take place. So doctors can testify in court or be deposed.  That’s the court’s “plain English” reading of “proceeding” — the presumption against preemption, the Levine court’s supposed “cornerstone,” be damned. 

Of course it occurs to any half-bright litigator (and we hope we’re at least that) that the court can empower an ex parte communication by making some sort of order permitting it to happen, perhaps with the sort of limitations in Ortho Evra. And here is where we end up in Catch 22 or Through the Looking Glass. The Proctor court interprets Missouri precedent to preclude such an order. Under Brandt II, courts cannot order doctors to submit to such ex parte communications. We don’t have a problem with that. Doctors are busy, and if they don’t want to have a nice, informal chat, that’s their business. But the Proctor court interprets State ex rel. Woytus v. Ryan, 776 S.W. 2d 389 (Mo. banc 1989), to prevent courts from ordering plaintiffs to sign medical authorizations consenting to ex parte communications with treating physicians. According to the Proctor decision, “Woytus ‘shows a judicial philosophy that discourages ex parte conversations with plaintiff’s doctor.’” 2009 WL 3735919 at *7 (quoting Brandt I, 856 S.W. 2d at 661).

It is clear that such hostility to ex parte communications animates the Proctor opinion. But the one-sided result makes no sense. First, Brandt II correctly concluded that plaintiffs who had put their medical condition at issue had waived the physician’s testimonial privilege and duty of confidentiality on such issues. Second, if, as both the Woytus opinion and the Proctor concurring opinion say, ex parte contacts with doctors “could disintegrate” into discussions of the “physician’s professional reputation,” “the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physicians’ views” (Proctor, 2009 WL 3735919 at *14 (concurrence) (quoting Woytus, 776 S.W. 2d at 395)), all of that exists at least as much, and probably a whole lot more, when plaintiffs’ lawyers start bending the ears of their clients’ doctors. 

 
Here is where we are: the Proctor decision has changed Missouri law, and for no good reason. Until it is overturned, the smart move by a defense lawyer is probably to seek out an Ortho Evra-type order that at least makes a gesture in the direction of limiting plaintiff lawyers from preloading doctors.

Some of you may have noticed that we’ve criticized a couple of Missouri opinions lately. The Nuvaring MDL (which, by the way, did a much better job on ex parte doctor interviews) is in Missouri, and we’ve been lobbing unkind words at it. Let’s be clear: we’ve got nothing against Missouri. Cardinals baseball fans are the best. Truman was an admirable President. When we were kids, we were keen on the Pony Express. We hear that the Andy Williams show in Branson really rocks. And Missouri has the best state motto: Show Me. We just wish the courts there would start showing us some good law.