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Turncoat Doctors (Continued from page 8)


medical information that may com- promise the confidential nature of the doctor-patient relationship without advancing any legitimate object of discovery.


State ex rel. Kitzmiller v. Henning, 437 S.E.2d at 455. One argument advanced by propo-


nents of ex parte communications between defense counsel and plaintiff’s physicians is that such communications are appro- priate so long as actual patient discussions and communications to the physician are not discussed or disclosed, and the dis- cussion is limited to the care provided and the physician’s medical opinions. There are numerous flaws in the argument. First, the duty of confidentiality is owed by the physician to the patient and it is not up to the physician or defense coun- sel to determine which confidences can be shared.22


Second, allowing


Manion v. N.P.W. Medical Center of


N.E. Pennsylvania, 676 F. Supp. 585, 594- 595 (M.D. Pa. 1987). The issue of undue influence is all the more acute in jurisdic- tions such as Maryland in which a single medical malpractice insurer covers the majority of the physicians in the state and may well be the insurer for the plaintiff’s treating physician. In such instances, the physician may “feel compelled to partici- pate in the ex parte interview because the insurer defending the medical malprac- tice lawsuit may also defend the physician witness.” Duquette v. Superior Court, 778 P.2d at 640.


Impact of Maryland Statutory and Case Law


As stated, Maryland has no statutorily created physician/patient privilege.


In defense


counsel to determine the appropriate bounds of discussion is tantamount to giving the fox the keys to the henhouse, i.e., competent defense counsel will surely determine close questions of relevancy and confidentiality in her client’s favor.23


Plac-


Third, it is impossible to ignore the danger that defense counsel may ex- ert undue influence over the physician by eliciting the physician’s fraternal feelings toward his fellow practitioners.25


ing the burden on the physician to determine the parameters of discussion is unfair both to the physician and the pa- tient.24


An unauthorized ex parte interview could disintegrate into a discussion of the impact of a jury’s award upon a physician’s professional reputa- tion, the rising cost of malpractice insurance premiums, the notion that the treating physician might be the next person sued, and other topics which might influence the physician’s views.


22 23


Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986).


Kassel, Ex Parte Conferences with Treating Physicians, 9 S. Carolina Lawyer 42 (Sept./ Oct. 1997).


24 25


Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986).


Manion v. N.P.W. Medical Center of N.E. Pennsylvania, 676 F.Supp. 585 (M.D. Pa. 1987).


Summer 2002 Trial Reporter 11


addition, no physician/patient privilege existed at common law. However, that is not to say that Maryland patients have no reasonable expectation of confidenti- ality and privacy in their interactions with their physicians. The Maryland Legisla- ture has enacted the Maryland Confidentiality of Medical Records Act in order to codify the duty of confidenti- ality owed by physicians to patients regarding medical records.26


Md. Health


Gen. Code Annot., Section 4-302, regard- ing the confidentiality and disclosure requirements pertaining to medical records, states:


(a) In general - a healthcare provider shall: (1)Keep the medical record of a patient or recipient confiden- tial; and


(2)Disclose the medical record only: (i) As provided by this sub- title; or


(ii) As otherwise provided by law.


In general, medical records (other than mental health records) may only be dis- closed to third parties upon consent of the patient or pursuant to subpoena. In the context of potential or actual claims of medical malpractice, there are circum- stances in which a patient’s medical record can be disclosed without the authoriza- tion of the patient or pursuant to subpoena. Md. Health Gen. Code Annot., Section 4-305(b)(iii) allows, but does not require, the healthcare provider to disclose a patient’s medical record with- out authorization


[t]o any provider’s insurer or legal counsel, or the authorized employ- ees or agents of a provider’s insurer or legal counsel, for the sole pur- pose of handling a potential or actual claim against any provider if the medical record is maintained on the claim and relates to the subject matter of the claim. . . .


26


Maryland Confidentiality of Medical Records Act, Md. Health Gen. Code Annot. § 4-301 et seq.


Maryland Health Gen. Code Annot., Sec- tion 4-306(b)(3) requires the healthcare provider to disclosure without authoriza- tion


(Continued on page 12)


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