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Update on the Law: Turncoat Doctors Physicians Acting As Consultants or Expert Witnesses

for Their Patients' Adversaries in Litigation David J. Wildberger

Introduction Back in 2001, I wrote an article for the Trial Reporter

entitled "Turncoat Doctors: Physicians Acting as Consultants or Expert Witnesses for Teir Patients’ Adversaries in Litigation" in which I attempted to argue that the then current practice of ex parte contact between physicians and the legal adversaries of their patients should be prohibited. I cited various legal and ethical pronouncements that I thought clearly supported my position. As I was about to send my article to press, the Court of Special Appeals issued its opinion in Butler-Tulio v. Scroggins, 139 Md. App. 122, 774 A.2d 1209, cert. denied, 366 Md. 247, 783 A.2d 221 (2001). Tat opinion made plain that I was very wrong in my interpretation of Maryland law. Not the first time, and certainly not the last. I pulled and edited my article to include an examination of the Butler-Tulio opinion. By the time it got to press, the Court of Appeals had denied certiorari and Butler-Tulio was firmly entrenched and the pendulum of the law had fully swung to the wrong side. Fortunately for our clients, the federal government was

about to change the lay of the land. Te Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. 1320d, et seq. (HIPAA) came into practical effect in April, 2003. Simply put, HIPPA ensured medical privacy as a matter of federal law, and precluded ex parte contact between defense lawyers and our clients’ physicians in all but a limited set of circumstances. Te immediate appearance was that the legal pendulum had returned to a more favorable location. Not to be outdone, defense lawyers quickly seized on a number of perceived “loopholes” in the law and began filing Motions for Limited Protective Orders seeking court orders allowing (but not compelling) ex parte communications. Such orders came fast and furious, and provide a battleground to this day. In 2005, I wrote an article describing the lines of battle on the issue. At the time, it seemed that many courts were accepting defense arguments and granting motions allowing ex parte communications. Te legal pendulum appeared to be swinging in the wrong direction once again. Fortunately, in the last several years courts have become less willing to buy the arguments offered by defense counsel in support of their quest for collusion with our clients’ physicians. Te battle continues, but a few recent published opinions have proved quite persuasive in opposing defense motions. In this article, I am going to review the history of this

issue from Butler-Tulio, to HIPPA, to Motions for Limited Protective Orders, to selected current published opinions. I will conclude with a brief analysis of a few American Medical Association Code of Medical Ethics Opinions which should give pause to our clients’ physicians even if a court grants the option of ex parte contact.

Trial Reporter / Summer 2009 37

A. Butler-Tulio v. Scroggins Te question of whether, and if so, under what

circumstances, a physician may affirmatively cooperate with his patient’s legal adversaries is one that has vexed plaintiffs’ lawyers for many years. Prior to 2001, the law of Maryland was unclear on the subject, but the routine practice was for defense counsel to attempt to coopt plaintiff ’s treating health care providers whenever possible. Te reason for this is obvious. Juries tend to see treating health care providers as neutral observers, rather than paid experts, and may often assign additional weight to the testimony of such doctors on that basis. Even if the treating doctor does not testify in court, cooperation with defense counsel poses the very real prospect that plaintiff ’s trusted physician will disclose confidential information to the detriment of his patient. Tis is a particularly acute problem in medical malpractice cases, in which the influences exerted on plaintiff ’s treating physician may render them anything but neutral observers. Whether in the context of medical malpractice litigation,

or in the broader context of general personal injury litigation, the prospect of facing a client’s treating physician acting

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