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Defendants cite the need to discuss the medical care providers’ expected testimony and line of questioning, as well as the financial burden of the additional time and expense related to deposing all of Plaintiff ’s medical care providers . . . the Court sees no persuasive argument why traditional methods of discovery are insufficient to obtain the information defendants require [and] will not lend its imprimatur to ex parte communications.

Yougasavang v. Stinson, Civ. No. 06-0853, letter op., D. Md., November 9, 2006. Tat respected federal judges in this District, interpreting

a federal statute, have so firmly rejected the arguments offered by defense counsel in their attempts to circumvent HIPAA’s broad mandate of medical privacy provides powerful support for the argument that exceptions to that mandate should be granted extremely sparingly.

E. Non-Legal Consideration of Ex Parte Contact -- American Medical Association Opinions on the Code of Medical Ethics

As stated above, in instances in which defense Motions

for Limited Protective Order are granted, the relief provided allows, but does not require, the treating physician to engage in ex parte communications with his patient’s litigation adversary. As such, legal protection is provided to the health care provider vis a vis HIPAA. Such court orders do not, however, address the ethical conundrum facing a health care provider when confronted with a situation in which his loyalty and duty of confidentiality to his patient is in conflict with interests of the patient’s legal adversaries.

According to its website, the American Medical

Association’s Council on Ethical and Judicial Affairs (CEJA) “develops ethics policy for the AMA” and “prepares reports that analyze and address timely ethical issues that confront physicians and the medical profession. CEJA maintains and updates the 160-year-old AMA Code of Medical Ethics widely recognized as the most comprehensive ethics guide for physicians who strive to practice ethically.” Te Current Opinions of AMA’s Council on Ethical and Judicial Affairs provide the most detailed description of the physician’s duty to the patient and support for the proposition that the physician’s cooperation with his patient’s adversaries is, at a minimum, ethically problematic.

According to

the AMA’s Council on Ethical and Judicial Affairs, the fundamental elements of the patient/physician relationship comprise an over-all

“alliance” between the patient and

physician designed to bring the greatest benefit to the patient. “Physicians can best contribute to this alliance by serving as their patient’s advocate and by fostering [the patient’s] rights,” including, the right of confidentiality. “Te physician should not reveal confidential communication or information without the consent of the patient, unless provided for by law or by the need to protect the welfare of the individual or the public interest.” Section 5.05 of the Current Opinions of the Council on

Ethical and Judicial Affairs states: Te information disclosed to a physician during the

course of the relationship between physician and patient is confidential to the greatest possible degree. Te patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services.

Te patient should be able to make this

disclosure with the knowledge that the physician will respect the confidential nature of the communication. Te physician should not reveal confidential communications or information without the express consent of the patient, subject to certain exceptions which are ethically justified because of overriding considerations.

* * *

When the disclosure of confidential information is required by law or court order, physicians generally should notify the patient. Physicians should disclose minimal information required by law, advocate for the protection of confidential information and, if appropriate, seek a change in the law.

Section 5.05 states that the physician should disclose

confidential medical information only upon consent of the patient, or as required by law, and states that only minimal information should be disclosed when so required. Of course, HIPAA orders do not generally require the physician to disclose confidential information, but only allow him the discretion to do so. Section 5.08 of the Current Opinions of the Council on

Ethical and Judicial Affairs, states that: History, diagnosis, prognosis, and the like acquired

44 Trial Reporter / Summer 2009

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