Tom Greene, UMIA Senior Claims Investigator
A. Thomas Williams, MD, Assistant Medical Director, UMIA
Some time during a physician’s practice there is a high probability of being engaged by a plaintiff’s attorney to discuss the care of a patient either as a potential expert or as a subsequent treating physician. These conversations, which have always been a “slippery slope” for well-intentioned and ethical physicians, just became even more treacherous due to the February ruling by the Utah Supreme Court (Sorensen v. Barbuto , 2008 UT, Feb. 1, 2008).
In Sorensen v. Barbuto the Court ruled that a plaintiff’s physician (treating or subsequent treating M.D.) could not engage in any discussions with defense counsel without prior notification being given to the plaintiff. In this case, the plaintiff filed a negligence action against a vehicle driver for damages sustained in an accident. During discovery, the plaintiff’s physician participated in an ex parte (one-sided, no plaintiff counsel present) communication with defense counsel. As a result, he agreed to act as an expert witness for the defense. Following trial for the negligence action, the plaintiff filed various claims against the physician for the ex parte communication. The physician filed a motion to dismiss the suit, which the Court of Appeals granted. The Utah Supreme Court reversed the ruling judging that even when a patient puts his/her medical condition at issue in litigation, the patient can still prevent the physician from communicating with defense counsel unless specific permission is granted or representation is present. The Supreme Court seems to believe that private, one-sided (ex parte) conversations with a defense attorney deprive the plaintiff of a just opportunity to secure potential supportive witnesses and experts from among treating physicians if the plaintiff is not represented or a party to the conversations.
What does this mean practically to UMIA insured physicians?
If you are approached by a lawyer to discuss your role in a patient’s care, the following steps are the recommended method of engaging the inquiring attorney:
1. Identify whom the attorney represents, plaintiff or defense, and get the attorney’s name and phone number.
2. Do not provide any specific information or opinion about the patient or the care rendered.
3. Indicate any further communication can be gladly accomplished once you make arrangements for counsel to be present.
4. Notify a UMIA claims investigator by phone of the request to meet the attorney. An investigator is always available.
5. Resist any temptation or the seduction of a casual request by an attorney to discuss care or opinions over the phone or in person without appropriate legal representation.
6. Understand that even if a patient has authorized his/her attorney to speak with you ex-parte, you are not compelled to do so without your own attorney present.
What happens next?
UMIA claims investigators will arrange, at no expense to the physician, for expert legal representation to be present for any required communications with the requesting attorney. To be in compliance with the above ruling, the plaintiff needs to be notified if the meeting is requested by defense counsel. If a meeting is planned with the plaintiff’s attorney, it is important that the discussion be well documented to avoid embarrassing contradictions in testimony that can occur with informal, friendly conservations.
What happens if you talk to lawyers about a patient’s care without counsel present?
Several unfortunate and embarrassing events can occur if a physician opts to engage in conversations with an attorney about a patient without appropriate legal support. First, you can be in violation of the above ruling, which could result in a secondary claim against you by the involved patient (plaintiff). Second, any information collected at an informal and casual meeting with a plaintiff’s lawyer could result in your becoming an additional named physician in the suit. Third, it is possible any conversation you have could be taped by an attorney without your knowledge. Any statements you make may be used to contradict subsequent testimony and invalidate you as a witness to the detriment of you and any defendants.
Here are two real examples of the kinds of problems physicians created for themselves by talking to plaintiff’s counsel without proper representation and knowledge of the potential pitfalls. (Names and details have been changed to protect the privacy of the involved parties.)
Example 1: The Experience of Dr A and His Recorded Conversation
Dr. A acted as subsequent treating physician for a patient who filed a liability claim against a UMIA insured physician. The UMIA attorney scheduled the deposition of Dr. A to obtain his opinion about the cause and the permanency of the damage to the patient. No negligence claim existed against Dr. A.
One week prior to the deposition, the plaintiff’s attorney met with Dr. A at his office to “run a few things by him” before the scheduled deposition. The plaintiff’s attorney nicely and congenially asked Dr. A to comment on the issues discussed in a report from an out-of-state expert for the plaintiff, which he did.
At the scheduled deposition requested by the defendant physician’s attorney, Dr. A provided testimony that proved to be very supportive and helpful to the defendant physician on causation and long-term prognosis. When the plaintiff’s attorney began questioning Dr. A, he revealed for the first time he had spoken to Dr. A the week before. He then proceeded to question Dr. A in a very accusatory way suggesting that didn’t he, in fact, say a week earlier that he agreed with the plaintiff’s expert report. He emphasized Dr. A’s testimony with quotes from his written notes made during the earlier conversation. As one might imagine, Dr. A clearly experienced significant discomfort and embarrassment as the plaintiff attorney used his own words to refute his most recent testimony. The context of the questions ended up being very different during the deposition than in the earlier informal discussion with the plaintiff’s attorney when he seemed to only be seeking clarification. Defense counsel could not re-establish Dr. A’s credibility and Dr. A went from being helpful to the defense to a discredited witness for both sides because of conflicting statements that were now permanently recorded in deposition record.
Dr. A did not inform anyone of his meeting with the plaintiff’s attorney, including the institutional Risk Manager. Had he mentioned his planned meeting with a plaintiff’s attorney to a risk manager or to UMIA staff, he would have been advised that it might not be in his best interest to discuss the case informally as anything said could be used against him in his formal deposition.
Example 2: The Friendly Neighborhood Attorney
Dr. J, a pathologist and UMIA insured, examined an intra-operative, fragmented, frozen section during the course of routine work and determined it to be free of malignant change. A subsequent review of the permanent tissue sections, and confirmation by a gynecologic pathologist, revealed a very rare form of cancer. The final pathology report reflected the nature of the malignancy and its likely size as indicated by measurement of the fragmented sample aggregate. The report did not indicate a volume estimate because of the fragmented and limited nature of the specimen.
The patient asserted a negligence claim against the operating surgeon for failure to pre-operatively anticipate the presence of the malignant tumor based on the pathologic report of the estimated tumor size. The claim did not include the pathologist.
The plaintiff’s attorney knew the pathologist socially from the neighborhood, and Dr. J considered this attorney to be a friend. The attorney approached Dr. J and inquired if he had any slides from the case from which he could estimate the quantitative size of the tumor in centimeters. The pathology report indicated the mass approximated 10 cm. Dr. J indicated he could not put a determinate measurement on the sample because of fragmentation, but agreed it likely approached a 5 cm size.
Several months later, the pathologist received a subpoena to give his deposition in the claim. The plaintiff’s attorney again phoned the pathologist to review what he would say in the deposition, and for the first time, informed Dr. J he had taped their prior phone conversation.
Concerned, Dr. J contacted UMIA for assistance and indicated he may have made some statements during his first conversation with the attorney that he might not be able to support during a deposition. UMIA retained counsel to attend the deposition with Dr. J, and counsel wisely demanded, and received, a copy of the transcript of the taped phone conversation prior to the deposition. Needless to say, the relationship between the attorney and the pathologist cooled significantly because the attorney did not inform him he recorded the call until two days prior to the deposition.
At deposition, the relationship between Dr. J and the plaintiff’s attorney remained tense and adversarial. The plaintiff’s attorney tried to hold Dr. J to his statements from the taped transcript even though they would likely not be admissible in court and were objected to on the record. Dr. J confirmed that the measurements noted in the report represented the combined diameter of the entire tissue sample and not the measurement of the cancerous tissue. He tried to explain this point in the initial phone conversation, but it had been overlooked in the plaintiff’s interpretation of his comments. The transcript showed Dr. J to be very distracted during the call as one of his children had been involved in an accident, and he had to deal with that issue in the middle of the conversation about the tumor with the attorney.
Dr. J. clearly believed the plaintiff’s attorney used his personal relationship with him to try to elicit statements that did not accurately reflect the facts of the case. Fortunately, the duplicitous action of the plaintiff’s attorney to elicit favorable, but inaccurate statements from Dr. J was thwarted by the support and guidance of UMIA counsel. Dr. J’s statements during the deposition remained consistent with the phone transcript in spite of the plaintiff attorney’s attempt at misinterpretation.
The Bottom Line
These interesting physician interactions with attorneys point out the common pitfalls awaiting the unwary physician. The best policy is for a physician is t avoid making statements to a plaintiff’s attorney regarding the care and management of a patient except in a formal meeting with representation from UMIA or other counsel and only after careful, complete review of the records. Plaintiff’s attorneys may record anything you say without revealing they are doing so, particularly in phone conversations. Anything you say in these casual conversations may make it very difficult to give proper, accurate testimony at deposition; and the information could be used against you should some error or lapse on your part be discovered. Conversations with defense attorneys without plaintiff’s approval may result in secondary action against the physician.
Although generalizations are to be avoided, it is not unusual for a plaintiff’s attorney to be solicitous when gathering information, and adversarial and aggressive when it comes down to giving testimony. Be especially wary of casual “friends” who are attorneys that just want a “curbside opinion,” or want to “run something by you” regarding a specific patient or medical condition. It is best to follow the above recommendations for any conversations with attorneys that are not your own.
If you have questions about the Sorenson ruling or how to deal with providing information to inquiring attorneys, please contact Jeri James at the UMIA at 801.531.0375.
###
