Violation! An Examination of Ex Parte Communications in the Context of Medical Negligence Cases in New Hampshire

By

Nick E. Abramson and Elie A. Maalouf[1]

December 2017

I. Introduction:

Despite clear law to the contrary, defense counsel in medical malpractice cases continue to engage in unauthorized ex parte communications with the plaintiff’s nonparty treating physicians.  In fact, in a recent medical malpractice case, defense counsel casually mentioned during the deposition of a defendant that he had already communicated with two of the defendant-physician’s partners, who were nonparty treaters of the plaintiff.  Defense counsel’s expounded justification for this transgression was that he was entitled to speak, ex parte, with any members of the defendant-physician’s medical group, even those not named as parties in the action.  Whether defense counsel is uninformed as to the governing law on this issue matters not – in New Hampshire, this practice is prohibited.  Communications of this nature violate not only New Hampshire law established thirty years ago in Nelson v. Lewis,[2] but also the physician-patient privilege.[3]

Ex parte meetings significantly increase the risk that a physician may reveal private and possibly humiliating information that patients believe they are disclosing to their doctors in confidence, under the umbrella of the physician-patient privilege.  Moreover, ex parte conferences allow for the “consideration of extrinsic matters” that could bias a physician in the healing of his or her patient.[4]  For example, defense counsel may influence the physician with discussions about the impact of a jury verdict on the physician’s reputation or by suggesting that the physician could be the next target of a malpractice suit.[5]  Notwithstanding defense counsel’s attempts to circumvent the bar against unpermitted ex parte interviews, New Hampshire courts have routinely affirmed this fundamental protection afforded to patients.[6]

II. New Hampshire Courts Have Consistently Found Defendants’ Arguments in Favor of Ex Parte Interviews Unpersuasive

Courts in New Hampshire, like many jurisdictions across the country, remain unconvinced that ex parte interviews are necessary for defendants to discover information otherwise unavailable through conventional channels.[7]  In Nelson, the plaintiff brought a medical negligence action against her doctor because she was forced to undergo a hysterectomy and bilateral sapling-oophorectomy as a result of her doctor’s failure to diagnose her pelvic inflammatory disease.[8]  Before filing suit, the plaintiff’s attorney met privately with the nonparty surgeon to discuss the potential lawsuit.[9]  Once litigation began, the defendant sought—and the plaintiff refused—permission to meet with the surgeon ex parte as well.[10]  Consequently, the defendant filed a motion requesting the Court’s authorization to speak with the surgeon informally.[11] The Court denied the motion, holding under no circumstances may the Court force the plaintiff to allow such interviews to take place.[12]

The defendant in Nelson argued—unsuccessfully—that ex parte interviews benefit the litigation process because (1) they are cheaper and less time consuming than formal discovery; (2) they “encourage a physician’s truth and candor;” and (3) they level the playing field because the plaintiff’s attorney already has unfettered access to the nonparty physician.[13]  The defendant also contended that prohibiting ex parte communications interferes with discovery by obstructing the defendant’s access to relevant information.[14]  Though the Court acknowledged the potentially beneficial aspects of ex parte interviews, it disregarded them as inconsequential when compared to the patient-plaintiff’s interest in preventing the disclosure of the patient’s unrelated and conceivably embarrassing medical information.[15]  The Court disagreed that the defendant’s discovery would be “significantly hampered” without ex parte contact, finding interviews “within the scope of formal discovery procedures” sufficient for the defendant to obtain any essential treatment-related information.[16]  Ex parte interviews “yield no greater evidence, nor do they provide any additional information” than the methods already available to the defendant.[17]

Furthermore, the confidentiality of the patient-physician relationship is particularly susceptible to breach in an ex parte setting.  Physicians are “largely unschooled in legal matters” and may inadvertently disclose information irrelevant to the patient-plaintiff’s lawsuit.[18]  Formal discovery procedures, however, protect a patient’s private, irrelevant medical information by requiring the presence of the plaintiff’s attorney in all interviews with the nonparty physician.[19]  The determination of what information is relevant to the lawsuit is best made in a setting where counsel for both sides are present.[20] Requiring the defendant to conduct all interviews of the nonparty physician in a formal deposition “serves the dual objectives” of protecting the confidentiality of the patient-physician privilege while also providing the defendant an opportunity to elicit any relevant evidence.[21]

Notwithstanding the explicit bar on ex parte conferences recognized in Nelson, defendants in New Hampshire have repeatedly attempted to evade this prohibition. For example, in Lizotte v. Gladstone,[22] the defendants moved the court for permission to interview two nonparty treating physicians who belonged to the cardiology group named as a defendant in the lawsuit.[23]  The defendants claimed the proscription of ex parte interviews did not apply because of the physicians’ membership in the practice group.[24]  The New Hampshire Superior Court rejected this argument, reasoning that the “mere fact that [a] treating physician is a member of the same group as the defendant” does not weaken the privilege nor does it alter reasoning in Nelson.[25]

Similarly, in McHugh v. Miner,[26] the defendant requested the court’s permission to speak with the plaintiff’s nonparty treating physician, arguing that the physician’s ownership stake in the defendant radiology group entitled the nonparty physician to speak with “his” attorneys ex parte.[27]  Consistent with New Hampshire’s unwavering protection of the patient-physician privilege, the court refused to accept the physician’s financial interest as a legitimate justification for ex parte communications.[28]  The fact that a defendant belongs to the same medical group as a non-party physician does not enable defense counsel to sidestep privilege and conduct ex parte interviews with any physicians in the medical group not named as defendants.

In reaching its conclusion, the Court defined the scope of the patient-physician privilege. The defendants in McHugh suggested that the prohibition on ex parte interviews did not apply because the nonparty treating physician was not the plaintiff’s primary doctor.[29]  The court disagreed with the defendants once again, holding that the patient-physician relationship encompasses any work “performed by [a] physician, or at his or her direction” for the purpose of acquiring information needed for treatment.[30]  Accordingly, New Hampshire courts have held that the preservation of confidentiality trumps all considerations in favor of ex parte interviews.

III. Defendants’ Unauthorized Ex Parte Communication Constitutes a Violation of the Patient-Physician Privilege

In its reasoning, the Nelson Court explained the plaintiff’s right to refuse defendants ex parte interviews is “consistent with the physician patient-privilege.”[31] The privilege, established by statute in New Hampshire, restricts the disclosure of statements made to a physician for the purpose of treatment.[32] The privilege provides, in relevant part:

The confidential relations and communications between a physician or surgeon…and his patient are placed on the same basis as those provided by law between attorney and client, and, except as otherwise provided by law, no such physician or surgeon shall be required to disclose such privileged communications.[33]

The New Hampshire Supreme Court has “continually sought to safeguard the statutory protections afforded the confidential relationship between physicians and patients…”[34]  Intended to “encourage full disclosure by the patient” to ensure the patient receives appropriate medical care, the privilege acknowledges that much of what a patient discusses with his or her physician could be “both embarrassing and of little real consequence to society.”[35]  The stringent limitations imposed by the privilege foster candid communication between the patient and physician, providing the patient an opportunity to disclose potentially relevant facts for appropriate treatment “without fear of humiliation.”[36] As the holder of the privilege, the patient has the right to prevent his or her physician from revealing such facts.[37]

Yet, the physician-patient privilege is “not absolute and must yield when the disclosure of the information concerned is considered essential.”[38]  In the context of medical negligence actions, the disclosure of information related to the medical treatment at issue is allegedly considered essential for the defendants to fairly challenge the plaintiff’s claim.[39]  The patient-plaintiff, however, only partially waives the privilege to the extent the information is relevant to the medical negligence action.[40]  Although New Hampshire courts have recognized a partial waiver of the physician-patient privilege in medical negligence actions, the courts have refused to extend this waiver so as to permit defendants to conduct ex parte interviews with treating physicians.[41] Thus, defendants and treating physicians alike violate the physician-patient privilege and the law as established in Nelson when they meet informally with nonparty physicians without permission from the plaintiff-patient.

IV. Engaging in Ex Parte Communications with Defendants May Violate the Ethical Duty Owed by the Physician

Speaking with defendants ex parte may also constitute an ethical violation on the part of the nonparty physician, who might—inadvertently—disclose confidential information not relevant to the litigation.[42]  Several states, including New Hampshire, have cited the code of ethics for medical professionals as a supporting source for the bar against ex parte conferences.[43]  This ethical code consists of three prongs: (1) Hippocratic Oath; (2) The American Medical Association’s (AMA) Principles of Medical Ethics; and, (3) The Current Opinion of the Judicial Council of the AMA.[44]  The Hippocratic oath recognizes a physician’s duty to “keep in trust patient confidences.”[45]  Similarly, the AMA’s Principles of Medical Ethics imposes upon physicians the responsibility of “safeguard[ing] patient confidences within the constraints of the law.”[46]  The final prong consists of the AMA Judicial Council opinions which set out “how a physician should act” and prohibit a physician’s disclosure of confidential information without the patient’s express consent.[47] New Hampshire law also proscribes health care providers from revealing confidential communications.[48]  Thus, unconsented-to ex parte contact compromises the confidentiality of the patient-physician relationship, which the ethical code of medical professionals, the legislature, and the courts have consistently sought to preserve.

Consequently, physicians who reveal confidential communications in a prohibited ex parte setting could face disciplinary action.[49]  Upon an affirmative finding of such misconduct, the New Hampshire Board of Medicine may sanction the physician in a number of ways.[50]  These disciplinary methods include, but are not limited to, reprimand, license suspension, license revocation, requiring the physician to participate in continuing legal education courses, and fines.[51]  In light of the significant consequences involved with disclosing confidential patient information, physicians should always refuse to meet with defendants ex parte.

V. Conclusion

Although New Hampshire law requires a defendant to obtain consent before meeting with a patient-plaintiff’s nonparty treating physician, plaintiff’s attorneys must remain vigilant because defendants continue to speak with nonparty treating physicians ex parte.  Putting a stop to this practice is imperative in order to protect confidentiality, preserve the inviolable patient-physician privilege, and prevent defense counsel from influencing – either advertently or inadvertently – the physician’s testimony. As the courts have maintained, formal discovery provides the appropriate avenue for the defendants to discover the information necessary to defend the action and preserve the privilege. Defendants must be prevented from trying to end-run this basic protection.

[1] Nick Abramson and Elie Maalouf are attorneys at Abramson, Brown & Dugan in Manchester, New Hampshire. Their firm’s practice focuses on representing plaintiffs in medical malpractice and personal injury litigation. Nick received his J.D. from Duke University in 2008, where he was a member of the Duke Law Review. Nick joined Abramson, Brown & Dugan after serving as a federal prosecutor at the U.S. Attorney’s Office in Concord, New Hampshire. Elie received his J.D. from Suffolk University Law School in 2017 where he was an editor of the Suffolk University Law Review.

[2] 130 N.H. 106 (1987).

[3] See id. (1987) (recognizing plaintiff’s right to refuse defendant ex parte interviews with treating physicians).

[4] See State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 394 (Mo. 1989) (cautioning against improper tactics).

[5] See Manion v. N.P.W Medical Center of N.E. Pa., Inc., 676 F.Supp. 585, 594-95 (M.D.Pa. 1987) (identifying potential of impropriety that exists with ex parte communication); see also Scott Aripoli, Hungry Hungry HIPAA: Has the Regulation Bitten Off More Than It Can Chew by Prohibiting Ex Parte Communication with Treating Physicians?, 75 UMKC L. Rev. 499, 505 (2006) (expressing concern about defendants using ex parte conferences to corrupt nonparty physicians).

[6] See, e.g., McHugh v. Miner, Docket #97-C-97 (N.H. Super., June 4, 1997); Bhat v. Kirk, (N.H. Super., Sept. 10, 1999); Lizotte v. Gladstone, Docket #01-C-0790 (N.H. Super., Apr. 22, 2002). The New Hampshire Supreme Court has repeatedly denied motions by defendants seeking the court’s permission to interview nonparty physicians ex parte.

[7] See supra note 6; see also Sorsensen v. Barbuto, 177 P.3d 614, 620 (Utah 2008)(emphasizing fact that defendants are not precluded from interviewing physician through traditional discovery)  Neubeck v. Lundquist, 186 F.R.D. 249, 251 (D. Me. 1999) (limiting defendant to “formal mechanisms of discovery”); Acosta v. Richter, 671 So.2d 149, 156 (Fla. 1996) (finding disclosure of information must be consistent with rules of discover); Petrillo v. Syntex Laboratories, Inc., 499 N.E. 2d 952, 967-68 (Ill. App. Ct. 1986) (reaching conclusion after thorough review of case law from other jurisdictions).

[8] See Nelson, 130 N.H. at 108 (explaining case history).

[9] See id.

[10] See id. 

[11] See id.

[12] See Nelson, 130 N.H. at 107.

[13] Id. at 110-111 (addressing defendants’ arguments); but see Woytus, 776 S.W.2d at 394 (casting doubt on defendant’s argument that ex parte communication conserves resources); Crist v. Moffatt, 389 S.E.2d 41, 46 (N.C. 1990) (suggesting written deposition questions as a cost-effective alternative).

[14] See Nelson, 130 N.H. at 111.

[15] See id.; Lizotte v. Gladstone, Docket #01-C-0790 (recognizing added expense “pales in comparison to harm by breach” of privilege); see also infra Part III (discussing significance of physician-patient privilege in New Hampshire).

[16] Nelson, 130 N.H. at 111; see also Petrillo v. Syntex Laboratories, Inc., 499 N.E. 2d at 967-68 (pointing to “regular channels of discovery” as means for defendant to access necessary information); State ex rel. Klieger v. Alby, 373 N.W.2d 57, 61 (Ill. App. Ct. 1985) (seeing no hardship in requiring defendants to follow discovery procedures); supra note 7 (identifying states that restrict defendants’ access to nonparty physicians to formal discovery methods).

[17] Petrillo, 499 N.E.2d at 956 (pointing out defendant’s failure to identify any evidence which he could obtain ex parte but not through ordinary discovery).

[18] Nelson, 130 N.H. at 111 (warning about risks of inadvertent disclosure); Roosevelt Hotel lts. P’ship v. Sweeney, 394 N.W.2d 353, 357-58 (Iowa 1986) (refusing to place burden of determining relevancy on the nonparty physician); see also infra Part III (highlighting sanctity of patient-physician privilege).

[19] See Nelson 130 N.H. at 111; Roosevelt, 394 N.W.2d at 357-58; Klieger, 373 N.W.2d at 61.

[20] See Roosevelt, 394 N.W.2d at 357-58.

[21] Nelson 130 N.H. at 112; McHugh v. Miner, Docket #97-C-97 (N.H. Super., June 4, 1997) (identifying proper procedure for interviewing nonparty physician).

[22] Docket #01-C-0790 (N.H. Super., Apr. 22, 2002).

[23] See id. at 2.

[24] See id.

[25] Id. at 3.

[26] Docket No. #97-C-97, (N.H. Super., June 4, 1997).

[27] See id. at 2.

[28] See id. at 3.

[29] See id. at 2-3.

[30] McHugh v. Miner, Docket #97-C-97, at 3.

[31] See Nelson 130 N.H. at 109 (harmonizing plaintiff’s right to refuse ex parte interviews with physician-patient privilege established in RSA 329:26).

[32] See RSA 329: 26 (2010).

[33] Id.

[34] See Petition of State of N.H., 162 N.H. 64, 68 (2011).

[35] See Nelson, 130 N.H. at 109.

[36] Id. (citing to McNamara, The Hierarchy of Evidentiary Privilege in New Hampshire, 20 N.H.B.J. 1, 19 (1978)).

[37] See id.

[38] See Petition of State of N.H., 162 N.H. at 68; Desclos v. Southern New Hampshire Med. Ctr., 153 N.H. Med. Ctr., 153 N.H. 607, 615 (2006).  

[39] See Nelson, 130 N.H. at 112 (clarifying privilege does not obstruct defendant’s access to information essential to defending the suit).

[40] See id. at 111-12 (finding partial waiver applies only to “extent necessary to provide essential information”); Petrillo v. Syntex Laboratories, Inc., 499 N.E. at 967-68 (explaining plaintiff impliedly consents to waiver of confidentiality by filing lawsuit placing health condition at issue); State ex rel. Klieger v. Alby, 373 N.W.2d at 60 (restricting waiver of privilege to communications relevant to medical condition central to plaintiff’s claim).

[41] See Nelson, 130 N.H. at 111.

[42] See supra Part II (emphasizing risk of physician’s disclosure of irrelevant information due to lack of legal training).

[43] See Nelson 130 N.H. at109 (likening physician-patient privilege to Hippocratic oath); see also Crist v. Moffatt, 389 S.E.2d 41, 46 (N.C. 1990) (highlighting patient’s expectation that physician will abide by Hippocratic oath as policy reason for prohibition of ex parte interviews); Duquette v. Superior Court, 778 P.2d 634, 641 (Ariz. 1989) (warning ex parte interviews may constitute breach of physician’s ethical duty); Petrillo, 499 N.E. 2d at 957 (indicating public policy prohibiting ex parte communication rooted in ethical code); Horne v. Patton, 287 So.2d 824, 829 (Ala. 1973) (finding ethical code “unequivocally recognizes” significance of confidentiality within patient-physician relationship). In Alabama, the Court recognized a cause action for damages as a result of a physician’s breach of confidence. See Horne, 287, So.2d at 828-29.

[44] See Petrillo, 499 N.E. 2d at 957.

[45] See Duquette, 778 P.2d at 641. The oath provides, in relevant part: “[w]henever, in connection with my professional practice or not in connection with it, I see or hear, in the life of men…I will not divulge, as reckoning that all such should be kept secret.” Id.

[46] See id.

[47] See Petrillo, 499 N.E. 2d at 957.

[48] See RSA 332-I:2 (I)(e) (2014) (forbidding unconsented to disclosure unless “provided for by law” or to protect patient’s welfare or public interest).

[49] See RSA 329:17 (I), (I-a), (VI)(k) (2016) (including RSA 332-I in list of professional misconduct subject to disciplinary actions). The board will initiate disciplinary proceeding on its own initiative or upon written complaint. See id.; see also John Jennings, The Physician-Patient Relationship: The Permissibility of Ex Parte Communications Between Plaintiff’s Treating Physicians and Defense Counsel, 59 Mo. L. Rev. 441, 450-51 n. 59 (1994) (explaining breach of ethical duty may result in punishment and identifies jurisdictions that discipline physicians for such misconduct).

[50] See RSA 329:17(VII) (2016) (listing disciplinary methods).

[51] See id.