Verdict - Summer 2011 - (Page 21)
Speaking Out of Turn:
Ex Parte Interviews With Plaintiff’s Treating Physicians
The Current State of the Law Under Baker v. Wellstar Health Systems, Inc.
BY JUSTIN D. STUDSTILL1
the Court held that although Georgia law and the Health Insurance Portability and Accountability Act of 19963 (“HIPAA”) do not prohibit orders allowing defense counsel to conduct ex parte interviews with a plaintiff’s treating physicians, these orders should be carefully tailored to limit discussions to matters relevant to the patient-plaintiff’s medical conditions at issue in the litigation.4 The Court noted that there are numerous dangers associated with ex parte interviews, such as: (1) the potential for unwarranted probing into matters irrelevant to litigation yet highly sensitive and possibly prejudicial to the patient-plaintiff; (2) the potential for disclosure of information, such as mental impressions not documented in the medical record, that the health care provider has never actually communicated to the patient-plaintiff; and (3) the potential for defense counsel to inﬂuence the health care provider’s testimony unwittingly or otherwise, by encouraging solidarity with or arousing sympathy for a defendant health care provider.5 Because of these potential dangers, the Court held that trial court orders granting ex parte interviews should state the following items with particularity: (1) the name(s) of the health care provider(s) who may be interviewed; (2) the medical condition(s) at issue in the litigation regarding which health care provider(s) may be interviewed; (3) the fact that the interview is at the request of the defendant, not the patientplaintiff, and is for the purpose of assisting defense counsel in the litigation; and (4) the fact that the health care provider’s participation in the interview is voluntary.6
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he question of whether defense counsel can conduct ex parte interviews with a plaintiff’s treating physicians has received considerable treatment by Georgia courts over the last few years. Most recently, the Georgia Supreme Court addressed this issue in Baker v. Wellstar Health Systems, Inc.2 In Baker,
Table of Contents for the Digital Edition of Verdict - Summer 2011
Let the Jurors Be Heard
A Rule Needing Limits: The “Right For Any Reason” Rule
Speaking Out of Turn: Ex Parte Interviews With Plaintiff’s Treating Physicians
GTLA 2011 President’s Gala: In Pictures
Legislative Relationships: The Key to Legislative Results
Welcome to the Federal Rules of Evidence: Georgia’s New Evidence Code
Judicial Spotlight: Reflections from the Bench
Book Review: The Fall of the House of Zeus
How I Obtained Justice for My Client: Cranford v. Ernest Homes
Technology Update: Securing Justice for Victims of Negligence? There’s an App for That!
Lessons from the Listserver: Is Defendant Driver History Permissible
Recent Updates in Workers’ Compensation
Welcome New GTLA Members!
Verdict - Summer 2011