Thursday, December 18, 2008

Informal Physician Interviews - Where It's Kosher; Where It's Not

We’ve blogged before about the importance of both sides in personal injury litigation – and especially drug/medical device product liability litigation involving the learned intermediary rule – having equal rights to talk to treating/prescribing physicians. We’ve praised courts that have gotten this issue right – most significantly the New York Court of Appeals in the Arons case. We’ve debunked what we consider a spurious argument HIPAA (the Health Insurance Portability and Accountability Act) interferes with state law on this subject, since that statute specifically excludes civil litigation from its purview.

But we know, because we’re involved in litigation all over the country, that not every (probably not even most) state agrees with us. We also know that in federal MDLs, even though discovery procedure is a procedural issue (e.g., Williams v. Rene, 72 F.3d 1096, 1103 (3d Cir. 1995); Weiss v. Astellas Pharma, US., Inc., 2007 WL 2137782, at *3-4 (E.D. Ky. June 25, 2007), and the cases we cited here), in practice a lot of judges defer to state practice in this area. So it’s important for defense counsel to know – realistically, and regardless of our philosophical views on the matter – where we can talk to the docs informally, and where we’ll get in trouble just for doing what the other side is allowed to do.

Ten years ago, or even less, we’d have agitated for one of the ABA’s litigation committees to prepare a 50-state survey on the question – and there might even be one of those, but we don’t know of anything recent. We couldn’t find anything on the ABA’s website.

But one of the great things about being bloggers is we don’t have to go through all that. If we think something’s important, we can do it ourselves, and so we are.

Here’s what we know about – Okay, what we think we know about – the status of informal defense access to treating physicians in the fifty states.

Remember, you get what you pay for, so don’t even think about using us as the be all and end all on this (or any other) subject. If you do, please see our disclaimer. Consider what we’ve done here more of a jumping off point.

Also, if you think we didn’t get your state right, please let us know. We’ve been flamed before, so we don’t mind all that much.

Alabama

From what we can tell, it’s okay to talk to a prescriber informally in the Heart of Dixie. Zaden v. Elkus, 881 So.2d 993 1012-13 (Ala. 2003). If a prescriber is willing, it’s okay to hire him/her as a defense expert. Romine v. Medicenters of America, Inc., 476 So.2d 51, 55 (Ala. 1985).

Alaska

Likewise, it seems okay to meet with prescribers informally in the New Frontier, Christensen v. NCH Corp., 956 P.2d 468, 475 (Alaska 1998), although such meetings can’t be compelled against the doctor’s will. Langdon v. Champion, 745 P.2d 1371, 1373 (Alaska 1987). Not that we'd try to do that, anyway.

Arizona

Don’t do it in the Grand Canyon state, though. Even though any privilege is waived, it’s only waived as to formal means of discovery. Don’t ask us why, but that’s what the court held in Duquette v. Superior Court, 778 P.2d 634, 637, 642 (Ariz. App. 1989). That was almost 20 years ago, but Arizona courts still follow the rule. See Styles v. Ceranski, 916 P.2d 1164, 1169 (Ariz. App. 1996). The federal courts have gone along. Benally v. United States, 216 F.R.D. 478, 480 (D. Ariz. 2003). Better safe than sorry.

Arkansas

Again, don’t do it. There’s a rule in the Diamond State that pretty clearly precludes defense counsel from having informal interviews without a plaintiff’s consent. Ark R. Evid. 503(d)(3)(B). The Arkansas Supreme Court enforced that rule in Kraemer v. Patterson, 29 S.W.3d 684, 690 (Ark. 2000), and the federal courts go along. Harlan v. Lewis, 982 F.2d 1255, 1264 (8th Cir. 1993).

California

The Golden State doesn't prohibit informal interviews with treating physicians. In Heller v. Norcal Mutual Insurance Co., 876 P.2d 999, 1005 (Cal. 1994), the Supreme Court rejected a blanket ban, explicitly disapproving Torres v. Superior Court, 270 Cal. Rptr. 401 (Cal. App. 1990). But Heller held that counsel have to comply with the state’s confidentiality of medical information act, Cal. Civ. Code §56, et seq., 876 P.2d at 1004-05, which is too complicated for us to get into here. Federal courts are split. In Crenshaw v. Mony Life Insurance Co., 318 F. Supp.2d 1015, 1024-25 (S.D. Cal. 2004), the court followed Torres, apparently without realizing the California Supreme Court had disapproved it. In Galarza v. United States, 179 F.R.D. 291, 294 (S.D. Cal. 1998) the court approved informal interviews. [see comment for pending legislation warning]

Colorado

In the Centennial State, it’s okay to have informal interviews with physicians, and courts can grant orders authorizing them, as long as the plaintiff is given “reasonable notice” of proposed interviews, and the interviews are limited to medical matters waived by the plaintiff in the litigation. Samms v. District Court, 908 P.2d 520, 526 (Colo. 1995). Plaintiffs have no absolute right to attend such interviews. Reutter v. Weber, 179 P.3d 977, 978-79 (Colo. 2007).

Connecticut

There’s not much law in the Constitution State, but informal interviews seem to be allowed, only they can’t be required by court order. See Santaniello v. Sweet, 2007 WL 214605, at *3 (D. Conn. Jan. 25, 2007) (rejecting HIPAA preemption of informal interviews; documents must have HIPAA-compliant release); Valentino v. Gaylord Hospital, 1992 WL 43134, at *1-2 (Conn. Super. Feb. 19, 1992) (court refused to require interview).

Delaware

Informal interviews are allowed in the First State, but only with prior consent or by court order. Green v. Bloodsworth, 501 A.2d 1257, 1259 (Del. 1985). In personal injury litigation, court orders will be routinely allowed if the plaintiff resists. Id. Any privilege is automatically waived by filing a personal injury action. Del. R. Evid. 503(3).

District of Columbia

Informal interviews are allowed in the District of Columbia. Street v. Hedgepath, 607 A.2d 1238, 1247 & n.8 (D.C. 1992) (adopting permissive rationale of Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C. 1983)). Federal courts after Street go along. Miller v. Hilton Hotels Corp., 1993 WL 210866, at *3, 995 F.2d 305 (D.C. Cir. 1993) (non-precedential).  The DC bar recently issued an ethics opinion that a plaintiff's attorney could request, but not instruct, a treater not to speak to opposing counsel.

Florida

Don’t attempt informal physician interviews in the Sunshine State. There’s no sunshine for defendants. Informal interviews are prohibited by statute, Fla. Stat. §456.057(8); accord Acosta v. Richter, 671 So.2d 149, 152 (Fla. 1996), unless the physician has been sued, in which case the statute graciously allows the defendant doctor to confer informally with his/her own counsel.

Georgia

While informal interviews were allowed by statute in the Peach State, Ga. Code. 9-11-9.2, the Georgia Supreme Court held that the statute was preempted by HIPAA.  Moreland v. Austin, 670 S.E.2d 68, 70-71 (Ga. 2008). All is not lost, however, since recently, in Baker v. Wellstar Health Systems, Inc., ___ S.E.2d ___, 2010 WL 2159372 (Ga. June 1, 2010), the court held that, although HIPAA applies, defendants may apply for a "qualified protective order" to allow informal interviews under HIPAA whether the plaintiff consents or not.  Id. at *2-3. 

Hawaii

The Aloha State hasn’t said “aloha” to this issue yet. We can’t say what Hawaii law is on informal defense interviews with treating/prescribing physicians. It’s a free country, which means things are allowed until the law prohibits them, so we’d would go ahead, but proceed cautiously. Be very careful to make sure a Hawaii doctor knows an interview is voluntary, do not get into irrelevant matters, etc. Dot your i’s and cross your t’s. You don't want to be the one remembered for making bad law.

Idaho

There’s not a lot of law in Idaho, but in Morris v. Thomson, 937 P.2d 1212, 1217 (Idaho 1997), the court stated “the discovery rules do not limit defense counsel’s access to [the treating physician], and the defense is free to speak to the witness if she is willing.” That’s good enough for us to say it looks like the Gem State allows informal interviews.

Illinois

The Land of Lincoln hasn’t emancipated defense counsel to have equal rights with plaintiffs for informal discussions with treating doctors. Burger v. Lutheran General Hospital, 759 N.E.2d 533, 554-55 (Ill. 2001). Far from it. In Illinois, it was even held unconstitutional for the legislature to permit informal interviews by statute. Best v. Taylor Machine Works, 689 N.E.2d 1057, 1100 (Ill. 1997). Don’t do it unless you enjoy being held in contempt of court. Petrillo v. Syntex Laboratories, 499 N.E.2d 952, 962 (Ill. App. 1986).

Indiana

Defense informal interviews with treating physicians are barred in the Hoosier State as well. “[E]x parte interviews with a party-patient’s health-care providers by opponent’s counsel impermissibly compromise[] the physician-patient privilege.” Cua v. Morrison, 626 N.E.2d 581, 582 (Ind. App. 1993), adopted & incorporated, 636 N.E.2d 1248, 1249 (Ind. 1994). Federal courts, however, have been more liberal in allowing informal contacts under the Federal Rules. E.g., Martin v. CSX Transportation, Inc., 215 F.R.D. 554, 557 (S.D. Ind. 2003); Eve v. Sandoz Pharmaceuticals Corp., 2002 WL 32153352, at *1 (S.D. Ind. May 16, 2002).

Iowa

While we can’t say it’s 100% foreclosed, we would be very leery of conducting informal treater interviews in the Hawkeye State in light of Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353, 356-57 (Iowa 1986). Technically, Roosevelt Hotel held only that plaintiffs can’t be forced to consent to such interviews, but the opinion's language is definitely not helpful. A later case allowed workers compensation defendants to hold all the informal interviews they want. Morrison v. Century Engineering, 434 N.W.2d 874, 876-77 (Iowa 1989). So it's possible, if not likely, that there might be some flexibility here.

Kansas

Federal courts in the Sunflower State routinely allow informal defense interviews with treaters. E.g., Harris v. Whittington, 2007 WL 164031, at *1 (D. Kan. Jan. 19, 2007) (describing practice as “well settled” and citing a bunch of cases). Kansas state courts don’t seem to have addressed the issue.

Kentucky

Go for it, guys. The Bluegrass State is amenable to informal defense interviews of treating physician. Roberts v. Estep, 845 S.W.2d 544, 547 (Ky. 1993); Davenport v. Ephraim Memorial Hospital, Inc., 769 S.W.2d 56, 62 (Ky. App. 1988); Weiss v. Astellas Pharma, US., Inc., 2007 WL 2137782, at *3 (E.D. Ky. June 25, 2007).

Louisiana

There’s a statute in the Pelican State that limits the litigation waiver of the physician/patient privilege to certain specified “discovery methods.” La. C. Evid. §510(E). This limitation has been held to prohibit defendant’s counsel from interviewing plaintiff’s treating or prescribing physicians informally. Coutee v. Global Marine Drilling Co., 895 So.2d 631, 641-42 (La. App. 2005), rev’d on other grounds, 924 So.2d 112 (La. 2006). Watch out in federal court, too. In In re Vioxx Products Liability Litigation, 230 F.R.D. 473, 476 (E.D. La. 2005), an MDL judge extended restrictive Louisiana law to actions filed anywhere in the country.

Maine

There’s no state court precedent, but a federal court in the Pine Tree State held that physician-patient privilege, even though waived, prohibited informal defense interviews with treaters. Neubeck v. Lundquist, 186 F.R.D. 249 (D. Me. 1999).

Maryland

Informal defense interviews with treating physicians are just fine in the Old Line State. Butler-Tulio v. Scroggins, 774 A.2d 1209, 1224-25 (Md. Spec. App.), cert. denied, 783 A.2d 221 (Md. 2001). A federal district court, Law v. Zuckerman, 307 F. Supp.2d 705, 711 (D. Md. 2004), construed HIPAA as overriding state law, but as we’ve discussed elsewhere, that’s a weak argument.

Massachusetts

In the Bay State, we’d hold off on interviewing physicians informally in light of Schwartz v. Goldstein, 508 N.E.2d 97, 99 (Mass. 1987), stating that “an opposing party should not be free to engage in clandestine, unauthorized conferences with a plaintiff's physician.” See Goldstein v. United States, 1995 WL 96959, at *1 (D. Mass. Feb. 6, 1995) (applying same rule in federal court).

Michigan

Michigan has consistently allowed defense counsel to interview treaters informally. Domako v. Rowe, 475 N.W.2d 30, 36 (Mich. 1991); Davis v. Dow Corning Corp., 530 N.W.2d 178, 180 (Mich. App. 1995) (per curiam). Beware, however, of a non-precedential, unpublished opinion asserting that HIPAA preempted the litigation rules of the Great Lakes State. Belote v. Strange, 2005 WL 2758007 at *5 (Mich. App. Oct. 25, 2005).

Minnesota

The North Star State’s gone back and forth. The current Minnesota physician/patient privilege would, if taken literally, forbid physicians even to give in-court testimony contrary to their patients. Minn. Stat. Ann. §595.02(1)(d). There’s an exception allowing a physician charged with malpractice to confer privately with his/her own counsel. Id. §595.02(5). We suppose this amendment was intended to overrule Blohm v. Minneapolis Urological Surgeons, P.A., 449 N.W.2d 168, 170 (Minn. 1989), which had allowed informal defense interviews under a prior iteration of the statute. The statute supported a blanket prohibition in In re Baycol Products Litigation, 219 F.R.D. 468, 473-74 (D. Minn. 2003). Baycol refused to follow Filz v. Mayo Foundation, 136 F.R.D. 165, 173 (D. Minn. 1991), which had allowed informal interviews as a matter of federal, rather than state, law.

Mississippi

In the Magnolia State, Mississippi Rule of Evidence 503(f) provides that a litigation waiver of the physician/patient privilege “does not authorize ex parte contact by the opposing party”). In Scott v. Flynt, 704 So.2d 998, 1006-07 (Miss. 1999), the court held that evidence obtained through an informal interview was inadmissible. We’d have thought that amounts to a prohibition, except that: (1) in Poole v. Avara, 908 So.2d 716, 725 (Miss. 2005), the court allowed the defendant to use a treater as an expert against a plaintiff/patient, and (2) in Griffin v. McKenney, the court dropped a footnote stating that Scott “in fact states that a defendant is not prohibited from speaking ex parte with a plaintiff’s physician,” but only that “information divulged by such communication is inadmissible.” 877 So.2d 425, 442 n.3 (Miss. App. 2003). This subsequent precedent leaves things sufficiently up in the air that we’d strongly recommend talking to a Mississippi lawyer about this before doing anything.

Missouri

In Brandt v. Medical Defense Association, 856 S.W.2d 667, 673 (Mo. 1993), the court overruled prior precedent (State v. Ryan, 776 S.W.2d 389, 395 (Mo. 1989)), and allowed informal defense interviews with treating physicians. See also Brandt v. Pelican, 856 S.W.2d 658, 662 (Mo. 1993); State v. Dalton, 872 S.W.2d 888, 890 (Mo. App. 1994). Now, in the Show Me State, “[t]he decision of whether to engage in ex parte discussions with an attorney concerning medical information that is no longer subject to the physician-patient privilege belongs solely to the physician.” State v. Syler, 936 S.W.2d 805, 809 (Mo. 1997).  But watch out, an intermediate appellate court in State v. Messina, ___S.W.3d ___, 2009 WL 3735919 (Mo. App. Nov. 10, 2009), has held that Brandt didn't affirmatively decide anything, and that therefore HIPAA precludes informal interviews.  We think that Messina is both wrong about HIPAA and a usurpation of the Supreme Court, but know it's out there before you proceed.

Montana

It looks like informal interviews are allowed in the Treasure State. In Jaap v. District Court, 623 P.2d 1389, 1390 (Mont. 1981), the court held plaintiffs could not be ordered to consent to informal defense interviews, but didn’t seem to have any problem with the concept of informal interviews itself. Id. at 1392. Building on Jaap, the court in Ostermiller v. Alvord, affirmatively held that informal interviews were allowable. 720 P.2d 1198, 1200 (Mont. 1986) (“interview by defendant's counsel can better be described as a means of reviewing a witness’s testimony than as a means of discovery. . . . [I]t was not error to allow the interview to take place”). However, in Hampton v. Schimpff, 188 F.R.D. 589, 590 (D. Mont. 1999), without citing Ostermiller, the court held that informal interviews were not allowed under Jaap. So be careful.

Nebraska

In the Cornhusker State there’s very little law. Informal interviews were allowed in Scott v. Drivers Management, Inc., 714 N.W.2d 23. 36 (Neb. App. 2006), but that was under a special statute concerning worker’s compensation. Our “free country” comments under Hawaii apply.

Nevada

There’s a statute in the Silver State that provides, “[t]here is no privilege . . . as to written medical or hospital records relevant to an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense.” Nev. Rev. Stat. §49.245(3). Maybe that could be read to allow informal interviews, maybe not. Voluntary informal interviews were okay in Stewart v. Women in Community Service, Inc., 1998 WL 777997, at *3-5 (D. Nev. Oct. 7, 1998), but that decision was under federal, not state, law. Id. at *3. Informal interviews were allowed under the statute in Parker v. Upsher-Smith Laboratories, Inc., 2009 WL 418596 (D. Nev. Feb. 18, 2009), and plaintiff's counsel sanctioned for interfering with them.

New Hampshire

You can’t have informal interviews in the Granite State unless the other side agrees and opposing counsel is present. Nelson v. Lewis, 534 A.2d 720, 723 (N.H. 1987). Why bother?

New Jersey

The Garden State ostensibly allows informal defense interviews with treating physicians. Stempler v. Speidell, 495 A.2d 857, 864-65 (1985); In re Diet Drug Litigation, 895 A.2d 493, 504 (N.J. Super. 2005). However, parts of New Jersey have become “judicial hellholes,” and in some mass torts, New Jersey trial courts have systematically ignored Stempler, and refused to allow informal interviews at all. E.g., Smith v. American Home Products Corp., 855 A.2d 608, 625 (N.J. Super. 2003).

New Mexico

Informal interviews are a no go in the Land of Enchantment. Smith v. Ashby, 743 P.2d 114, 115-16 (N.M. 1987); Gomez v. Nielson’s Corp., 894 P.2d 1026, 1029 (N.M. App. 1995).

New York

As we’ve already discussed at some length, informal interviews with plaintiffs’ treaters are (subject to notice and filling out some forms) allowed, and indeed encouraged, in the Empire State. Arons v. Jutkowitz, 880 N.E.2d 831, 837 (N.Y. 2007); see id. at 842-43 (rejecting HIPAA preemption).

North Carolina

The Tar Heel State may be a favorable defense forum in other respects, but not when it comes to informal treater interviews. North Carolina law prohibits informal interviews unless the plaintiff gives his or her express consent. Crist v. Moffatt, 389 S.E.2d 41, 45-46 (N.C. 1990).

North Dakota

North Dakota state courts have not ruled on whether defendants may have informal interviews with treating physicians. But federal courts have not been receptive. In Weaver v. Mann, 90 F.R.D. 443, 445 (D.N.D. 1981), the court interpreted the Federal Rules as precluding informal discovery, even while conceding that any privilege had been waived. In Bohrer v. Merrill-Dow Pharmaceutical, Inc., 122 F.R.D. 217, 218-19 (D.N.D. 1987), the court refused to compel plaintiffs to authorize informal interviews. In the past twenty-plus years, nothing in the Peace Garden State.

Ohio

The Buckeye State has surprisingly little law on this subject for such a large jurisdiction. Federal courts go both ways. In Bouchard v. American Home Products Corp., 213 F.Supp.2d 802, 805 (N.D. Ohio 2002), the court found insufficient Ohio precedent to preclude an informal meeting between defense counsel and a treating physician. More than thirty years earlier, another federal judge said such contacts were not allowed. Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793, 800 (N.D. Ohio 1965) (applying state law). The state courts are essentially silent, while in In re American President Lines, Ltd., 929 F.2d 226, 227 (6th Cir. 1991), the court had nothing against informal interviews except that they couldn’t be timely scheduled to fit within the trial court's discovery deadlines.

Oklahoma

Defense counsel can have informal physician interviews in the Sooner State. Holmes v. Nightingale, 158 P.3d 1039, 1046 (Okla. 2007). There was no HIPAA preemption either. Id. at 1041.

Oregon

There’s no case law on informal physician interviews in the Beaver State, but given the language of Oregon’s physician/patient privilege statute, Ore. Rev. Stat. §40.235(2), we doubt that informal discovery would be allowed, absent consent.

Pennsylvania

There’s no privilege, but under Pa. R. Civ. P. 4003.6, informal communication between defense counsel and a plaintiff’s treating physician is prohibited in the Keystone State.

Rhode Island

We can’t go informal in the Ocean State either. R.I. Gen. Laws §5-37.3-4 (“Disclosure by a health care provider of a patient’s health care information which is relevant to a civil action brought by the patient against any person or persons other than that health care provider may occur only under the discovery methods provided by the applicable rules of civil procedure . . . . This disclosure shall not be through ex parte contacts and not through informal ex parte contacts with the provider by persons other than the patient or his or her legal representative”).

South Carolina

We think the Palmetto State permits informal interviews. A federal court so held. Felder v. Wyman, 139 F.R.D. 85, 88 (D.S.C. 1991). Brown v. Bi-Lo, Inc., 581 S.E.2d 836, 838 (S.C. 2003), doesn’t appear to be contrary, as it involved a statute that expressly restricted means of communicating with treating physicians in workers compensation proceedings.

South Dakota

We’d be reluctant to have informal interviews in the Mount Rushmore State. While not directly on point, Schaffer v. Spicer, 215 N.W.2d 134, 137 (S.D. 1974), cited cases hostile to informal discussions. In DeNeui v. Wellman, 2008 WL 2330953, at *3-4 (D.S.D. June 5, 2008), the court allowed a treater to have informal contact with his own counsel (how generous), but “agreed” in dictum that defense counsel could not.

Tennessee

We can’t have informal meetings with treaters in the Volunteer State any more. Alsip v. Johnson City Medical Center, 197 S.W.3d 722, 724 (Tenn. 2006).

Texas

Pursuant to statute, Tex, Civ. Prac. & Rem. C. §74.052, informal interviews between defense counsel and plaintiffs’ treaters are permitted in the Lone Star State.  Its application to informal interviews was confirmed in In re Collins, 286 S.W.3d 911, 919-20 (Tex. 2009). Furthermore, there's no HIPAA preemption either.  Id. at 920.  One more reason to like litigating in (most parts of) Texas.

Utah

We just lost the informal communication issue in the Beehive State. Sorensen v. Barbuto, 177 P.3d 614, 619-20 (Utah 2008).

Vermont

There’s no law in the Green Mountain State on informal physician-opposing counsel meetings. See Hawaii. Vermont's a pretty tort-liberal state (see Wyeth v. Levine), so be careful.

Virginia

We think that the clear implication of the Virginia Supreme Court’s decision in Maxey v. Hubble, 385 S.E.2d 593, 597 (Va. 1989) - reversing a verdict for “improper statements” that the defendant did something shady in having informal interviews with the plaintiff's treaters - is that the Old Dominion permits such interviews. Nonetheless, a federal court interpreted Virginia law to prohibit what the court in Maxey had no problem with. McCauley v. Purdue Pharma, L.P., 224 F.Supp.2d 1066, 1069-70 (W.D. Va. 2002). Thus, be careful what you do in Virginia.

Washington

We can’t have informal contact with treaters in the Evergreen State under Loudon v. Mhyre, 756 P.2d 138, 140 (Wash. 1988), unless we’re in workers compensation proceedings. Holbrook v. Weyerhaeuser Co., 822 P.2d 271, 274-75 (Wash. 1992). Do it, and you’re liable to have your evidence excluded. Rowe v. Vaagen Brothers Lumber, Inc., 996 P.2d 1103, 1110 (Wash. App. 2000).

West Virginia

West Virginia took the top spot in the 2008 hellhole jurisdiction sweepstakes. Why should the Mountain State's law on informal defense contact with treaters be any exception? It isn’t. State ex rel. Kitzmiller v. Henning, 437 S.E.2d 452, 455 (W. Va. 1993).

Wisconsin

The Badger State frowns on informal interviews of treaters by defense counsel. Steinberg v. Jensen, 534 N.W.2d 361, 371 (Wis. 1995) (counsel “may not engage in ex parte ‘discovery’” with treaters, such as “a private question and answer session”). Informal questions must be in writing with a copy to opposing counsel. Id.
Wyoming

Wyoming law does not compel physicians to have informal interviews with defense counsel. Wardell v. McMillan, 844 P.2d 1052, 1065-67 (Wyo. 1992). Wardell pointed out that it was not addressing voluntary cooperation, however. Id. at 1067 n.15. On voluntary interviews, we’d like to think that the Equality State would follow its nickname. Our comment to Hawaii applies here.

6 comments:

Beck/Herrmann said...

A reader sent us and email this update on Texas:

Read with interest your recent post running down the law on ex parte interviews with physicians in various jurisdictions. As your citations suggested in the post, the Texas Supreme Court has not ruled on the issue. However, the issue has been directly presented recently to our Supreme Court in the mandamus action In re: Collins, Cause No. 07-0737. The case was orally argued on November 12th and obviously those of us in Texas involved in drug and medical device litigation, as well as med mal lawyers (if there're any left here), are following the case with great interest.

Beck/Herrmann said...

We've had another comment, from Dan Cody at Reed Smith, cautioning that in California, readers should be aware of pending privacy legislation, SB 541, that might affect the status of ex parte interviews. That legislation hasn't passed, so just keep that in mind.

Anonymous said...

one more comment ... you can still have ex-parte interviews in Tennessee if you have the patients express consent. See Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 631 FN1 (Tenn.2008).

I know your never going to get consent

Drew said...

It looks like the Texas Supreme Court affirmed in Collins, 2009 WL 1567175, just last month.

Also, my research led to a different conclusion regarding Montanan; I thing they are pretty clearly prohibited in that state per Court of the Eighth Judicial District, 191 Mont. 319; 623 P.2d 1389, 1391 (Mont. 1981). This holding was based upon the fact that Montana's rules of civil procedure specifically delineated “methods by which discovery may be obtained," and "a private interview of an adversary witness is not one of the 'methods' of discovery for which the Rules of Civil Procedure provide.”

Anonymous said...

"West Virginia took the top spot in the 2008 hellhole jurisdiction sweepstakes."

You are so wrong. John Denver said it best "Almost heaven, West Virginia . . . " Out here in the hellhole jurisdiction of Kansas we can only dream of such a beautiful, and plaintiff friendly, place.

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