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during the physician/patient relationship may be disclosed to an insurance company representative only if the patient or a lawful representative of the patient has consented to the disclosure. A physician’s responsibility to patients is not limited to the actual practice of medicine. Tey also include the performance of some services ancillary to the practice of medicine. Tese services might include certification that the patient was under the physician’s care and comment on the diagnosis and therapy in a particular case.

Once again, section 5.08 underscores the essential

requirement of patient consent before disclosure of not only spoken confidences, but also the patient’s history, diagnosis, prognosis and the like acquired during the physician/patient relationship. Section 5.08 is also important for its express statement that the physician’s duty to the patient includes the performance of some services ancillary to the practice of medicine, and that those ancillary services to the patient include comment on diagnosis and therapy. Section 8.03 of the Current Opinions of the Council on Ethical and Judicial Affairs, states that:

Under no circumstances may physicians place their own financial interests above the welfare of their patient. . . . If a conflict develops between the physician’s financial interest and the physician’s responsibilities to the patient, the conflict must be resolved to the patient’s benefit.

Section 8.03 deals rather succinctly with the issue of whether it is ethical for a physician to act as a paid medical consultant or expert on behalf of his patient’s legal adversary. In short, when a patient’s physician accepts compensation for acting as a consultant or expert witness for the patient’s adversaries, that physician places his own financial interests above the welfare of his patient and violates the clear dictates of Section 8.03. Section 9.07 of the Current Opinions of the Council on

Ethical and Judicial Affairs addresses medical testimony and states in pertinent part that:

When a legal claim pertains to a patient the physician has treated, the physician must hold the patient’s medical interests paramount, including the confidentiality of the patient’s health information, unless the physician is authorized or legally compelled to disclose the information.

Section 9.07 simply underscores the proposition that any

medical evidence furnished by the physician must be with the consent of the patient or under compulsion from a court. Taken in total, the AMA’s pronouncements regarding the

ethical duties of physicians to safeguard the confidentiality of the physician-patient relationship raise serious question about the propriety of a physician entertaining ex parte communications with his patient’s adversaries, even if a court order has been entered allowing, but not compelling, him to do so. Te counterpoint to this argument is that the AMA, in reality, is perhaps quite unlikely to sanction a physician for assisting another physician through ex parte communications. If so, then the AMA may have larger ethical considerations to confront within its own organization.

Trial Reporter / Summer 2009 45

Conclusion 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. Since 2001, the ebb and flow of the law has drastically impacted the issue. Te current trend, at least in the Untied States District Court for the District of Maryland, would seem to be in favor of protecting patient confidentiality and requiring traditional means of discovery be used to procure testimony from treating physicians. In addition to the legal issues implicated by ex parte communications, serious questions of medical ethics are raised for the consideration of treating physicians when provided orders which allow, but do not compel them to disclose confidential patient information without patient consent.

Biography David J. Wildberger is a shareholder in the firm of Iliff

& Meredith, P.C. in Pasadena, Maryland. He received his J.D. from the University of Maryland School of Law. Mr. Wildberger serves on the MAJ Board of Governors, and is the Chairperson of the Public Awareness & Outreach Committee, as well as a member of several other MAJ committees and sections. He is a member of the Maryland, District of Columbia and Federal Bars. His primary area of practice is the representation of individuals and families harmed by acts of medical negligence.

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