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health care providers is that they divide the loyalties of the health care provider between patient and colleague. Although most orders granting ex parte contact state that the health care provider’s participation in such discussions is voluntary, and may be refused, the pressure to aid a colleague may be great, even if that aid may be detrimental to the patient. If the treating health care provider cooperates with defense counsel, he endangers the very foundation of the relationship with his patient. Simply put, it is “difficult to believe that a physician can engage in an ex parte conference with the legal adversary of his patient without endangering the trust and faith invested in him by his patient.” Church's Fried Chicken No. 1040 v. Hanson, 845 P.2d 824, 829 (N.M. App. 1992).

4. Denying Defense counsel the ability to conduct ex parte interviews, i.e., informal discovery, is inefficient and wasteful. Tis argument wrongly assumes that ex parte contact

is automatically more efficient than traditional discovery devices. As one court has put it, it “is not clear that ex parte discussion ultimately results in the conservation of resources.” After ex parte communication with defense counsel it “is likely that the physician will later be questioned by the plaintiff ’s attorney about the discussion. Notwithstanding this time and effort, [the parties] may still deem it prudent to depose the physician.” Woytus v. Ryan, 776 S.W. 2d 389, 394 (Mo. 1989) (confining interaction between defense counsel and plaintiff ’s treating physicians to formal discovery methods). See also Brandt v. Pelican, 856 S.W. 2d 658, 662 (Mo. 1993). In addition, mere efficiency is not a factor to be considered in a vacuum. Te interests of efficiency must be weighed against the potential risks involved in ex parte interviews. See Loudon v. Mhyre, 756 P.2d 138 (Wash. 1988) and Alston v. Greater Southeast Community Hospital, 107 F.R.D 35 (D.D.C. 1985). As a very well reasoned Memorandum Order and Opinion by the Hon. Barry Hughes of the Circuit Court for Carroll County states, “[i]f mere expense and inefficiency were good cause under these statutes, the purposes of these laws could be circumvented in virtually every case, and such a result was not the intent of either legislative enactment.” Gist v. Yoon, Case. No. 06- C-04-041751, memorandum op., Cir. Ct. Carroll Co. March 22, 2006, (considering an ex parte motion in light of both HIPAA and the Maryland Confidentiality of Medical Records Act).

D. Recent Cases Recently, in the United States District

Court for the District of Maryland the issue of whether a defendant can undertake ex parte communications with a plaintiff ’s treating health care providers has been definitively resolved.

Since defendants

generally seek relief based on Maryland Rule 2-403, which is patterned on FRCP 26(c), Maryland courts may look for guidance to federal decisions construing

Trial Reporter / Summer 2009 43

the corresponding federal rule.Tanis v. Crocker, 110 Md.App. at 574. Beginning with Law v. Zuckerman, 307 F. Supp. 2d 705, 708 (D. Md. 2004), the United States District Court for the District of Maryland has issued a series of decisions carefully considering and interpreting the Federal Rules, HIPAA and their intersection with relevant Maryland law. Recently, in Jeffares v. Kheiti, Civ. No. L-07-1923, Chief Judge Benson Legg considered and denied a defendant’s motion for ex parte communications, and conclusively ended any debate in that court and explaining in a Memorandum Order that defendant’s motion was

without support in law and defendants have failed to demonstrate good cause for why traditional discovery methods are unworkable. Te issue presented in the instant motion has

been addressed conclusively in this district. See Law v. Zuckerman, 307 F. Supp. 2d 705, 709 (D. Md. 2004); Divelbliss v. Appaswamy, Civ. No. 07- 3025, slip op. (D. Md. Oct. 27, 2008)(Memorandum Order denying Motion for Ex Parte Communications with Plaintiff ’s Treating Health Care Providers). For the reasons presented in those cases, this Court DENIES defendant’s motion.”

Jeffares v. Kheiti, Civ. No. L-07-1923, Memorandum Op., D. Md., November 19, 2008 (emphasis added). In Divelbliss v. Appaswamy, Judge Richard Bennett considered and rejected the same arguments put forth by defendants seeking ex parte contact with plaintiff ’s health care providers, and ordered that the “defendants can utilize traditional methods of discovery for the purpose of learning facts from any health care providers. In short, the defendants can note the depositions of any treating physicians during the discovery phase of this case.”Divelbliss v. Appaswamy, Civ. No. 07- 3025, slip op., D. Md., Oct. 27, 2008. In Yougasavang v. Stinson, Magistrate Judge Charles Day (author of the Law v. Zuckerman decision) also considered and rejected the same arguments.

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