TURNCOAT DOCTORS: Physicians Acting as Consultants or Expert Witnesses for Their Patients’ Adversaries in Litigation. by David J. Wildberger
David J. Wildberger is an associate attorney with the firm of Iliff & Meredith, P.C. and practices primarily in the area of medical malpractice. He received his J.D. from the University of Maryland School of Law. Mr. Wildberger is a member of the MTLA, presently serving on the Legislative Committee’s Medical Malpractice Sub-Committee and the Education and Programs Committee.
The question of whether, and if so, under what circumstances, a physician may act as a consultant to his patient’s le- gal adversaries is one that has arisen often in courts across the nation. The decisions of those courts considering the question are almost as diverse as the factual pat- terns bringing the issue before the courts. Whether in the context of medical mal- practice litigation, or in the broader context of general personal injury litiga- tion, the prospect of facing a client’s treating physician acting as an adverse expert witness is vexing. Implicated are numerous, complicated issues that reside at the confluence of the medical care de- livery system and the adversarial system of civil litigation, i.e., at the border of the patient’s expectation of privacy and con- fidentiality and of the defendant’s expectation of open discovery. It is a given that treating physicians can be called or compelled to testify as fact witnesses in civil litigation in which the plaintiff has made his medical condition an issue, and the physician’s care and treat- ment are relevant to the case.
As a fact
witness, the physician may freely testify as to the details of his treatment, his ob- servations during treatment and to opinions formulated during the course of treatment.1
However, as always, the devil
is in the details. Can a physician ethi- cally and appropriately meet with his patient’s litigation adversaries on an ex parte basis? Can a physician act as an expert witness, paid or unpaid, for his patient’s litigation adversaries?
In a ma-
jority of opinions dealing with the issues, the propriety of ex parte communications between treating physicians and defense counsel plays a central role. After all, it is the initial ex parte communication be- tween defense counsel and the physician
1
See, e.g., Dorsey v. Nold, 362 Md. 241, 765 A.2d 79 (2001); Turgut v. Levine, 79 Md. App. 271, 290, 556 A.2d 720 (1989); Safeway Stores v. Buckmon, 597 A.2d 597, 606 (D.C. App. 1994).
4
that affords the opportunity for defense counsel to question the doctor without the patient’s consent or knowledge. Up until quite recently, Maryland’s appellate courts had not directly reached these ques- tions. Now, with the Court of Special Appeals’ decision in Butler-Tulio v. Scroggins, 139 Md. App. 122, 774 A.2d 1209, cert. denied, 366 Md. 247, 783 A.2d 221 (2001), plaintiffs in Maryland now face the very real prospect of having their trusted personal physicians actively coop- erate with the patient’s litigation adversaries to the express detriment of the patient.
A substantial number of courts have
ruled that ex parte communications be- tween defense counsel and plaintiff’s treating physicians are improper.2
Most of the courts reaching this conclusion cite 2
See, Horne v. Patton, 287 So.2d 824 (Ala. 1974); Styles v. Ceranski, 916 P.2d 1164 (Ariz. Ct. App. 1996); Phillips v. Ficarra, 618 So.2d 312 (Fla. Ct. App. 1993); Petrillo v. Syntex Laboratories, Inc., 499 N.E.2d 952 (Ill. App. Ct. (1986); Cua v. Morrison, 636 N.E.2d 1248 (Ind. 1990); Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986); Scott v. Flynt, 704 So.2d 998 (Miss. 1996); Jaap v. District Court of the Eight Judicial Circuit, 623 P.2d 1389 (Mont. 1981); Nelson v. Lewis, 534 A.2d 720 (N.H. 1987); Church’s Fried Chicken v. Hanson, 845 P.2d 824 (N.M. Ct. App. 1993); Stoller v. Moo Young Jun, 499 N.Y.S.2d 790 (N.Y.App.Div. 1986); Hammond v. Aetna Casualty & Surety Com- pany, 243
F.Supp. 793, 799 (N.D. Ohio, 1965); Crist v. Moffat, 389 S.E.2d 41 (N.C. 1990); Weaver v. Mann, 90 F.R.D. 443 (D.N.D. 1981); Manion v. N.P.W. Medical Center of N.E. Pennsylvania, 676
F.Supp. 585 (M.D. Pa. 1987); McCormick v. England, 494 S.E.2d 431 (S. Ct.1997); Horner v. Rowan Companies, Inc., 153 F.R.D. 597 (S.D. Tex. 1994); Loudon v. Mhyre, 756 P.2d 138 (Wash. 1988); State ex rel. Kitzmiller v. Henning, 437 S.E.2d 452 (
W.Va. 1993); Wardell v. McMillan, 844 P.2d 1052 (Wyo. 1992).
Trial Reporter
Maryland does not have a statutory or common law physician/patient privilege. Rubin v. Weissman, 59 Md. App. 392, 475 A.2d 1235 (1984). Because, like Mary- land, West Virginia has no statutory or common law patient/physician privilege, the Supreme Court of Appeals of West Virginia’s decision in State ex rel. Kitzmiller v. Henning, 190
W.Va. 142, 437 S.E.2d
3
See, Langdon v. Champion, 745 P.2d 1371 (Alaska 1987); King v. Ahrens, 798 F. Supp. 1371 (W.D. Ark. 1992); Heller v. Norcal Mutual Ins. Co., 876 P.2d 999 (Cal. 1994); Samms v. District Court, 908 P.2d 520 (Colo. 1995); Green v. Bloodsworth, 501 A.2d 1257 (Del. 1985); Alston v. Greater Southeast Com- munity Hosp., 107 F.R.D. 35 (D.D.C. 1985); Orr v. Sievert, 292 S.E.2d 548 (Ga. Ct. App. 1982); Pearce v. Ollie, 826 P. 888 (Idaho 1992); Bryant v. Hilst, 135 F.R.D. 487 (D. Kan. 1991); Roberts v. Estep, 845 S.W.2d 544 (Ky. 1993); Domako v. Rowe, 475 N.W.2d 30 (Mich. 1991); Brandt v. Pelican, 856 S.E.2d 658 (Mo. 1993); Stempler v. Speidell, 495 A.2d 857, (N.J. 1985); Seaberg v. Lockard, 800 P.2d 230 (Okl. 1990); Lewis v. Roderick, 617 A.2d 119 (R.I. 1992); Quarles v. Sutherland, 389 S.W.2d 249 (Tenn. 1965); Steinberg v. Jensen, 534 N.W.2d 361 (Wis. 1995).
Summer 2002
public policy grounds, including the need to foster and promote an honest and con- fidential relationship between physicians and their patients, the potential for dis- closure of confidential data, or the exercise of improper influence by defense counsel on plaintiff’s physician. Courts that have reached the conclusion that ex parte com- munications are appropriate, generally cite a different set of public policy concerns, including the defendant’s interest in less costly, informal discovery and the plaintiff ’s waiver of confidentiality as to the medical condition arising from the filing of the suit that brought the medical condition into question.3
The Rationale of Courts Disapproving Ex Parte Communications
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