The physician-patient privilege: friend or foe?

Like the attorney-client privilege with which it is often compared, the physician-patient privilege is designed to serve an important societal interest by encouraging individuals to impart confidential information to their physicians, secure in the knowledge that those confidences will be protected. A typical formulation of the privilege is that a physician is prohibited from disclosing information that he or she acquired from a patient while attending the patient in a professional capacity and that had to be communicated in order to serve the patient professionally.

The professional obligation to preserve patient confidences has roots in medical ethics that go back to the Hippocratic Oath, and it is recognized in the AMA Principles of Medical Ethics.[1] As a legal matter, however, the physician-patient privilege has been recognized by the courts only where it has been enacted into law by statute or court rule. Just as the AMA Principles recognize that the physician's ethical obligation to preserve confidences may be limited by law, the statutes and rules that create the legal privilege generally contain exceptions that recognize that, while it is important to preserve patient confidences, the public may have supervening interests that must be served, such as ascertaining the truth in a malpractice case or any other suit where the patient's physical or mental condition is in dispute. In such circumstances, the privilege must yield.

When, where, and how the privilege must yield to the needs of pretrial discovery in lawsuits has become a remarkably contentious matter in the past decade. Attorneys for hospitals and other defendants once assumed that, if physicians were willing to talk with them informally about their treatment of a plaintiff, they had the right to go ahead and interview them without all the expense and bother of subpoenas, court reporters, transcripts, and the presence of plaintiff's counsel. The only real exception to this rule of thumb was that one would not speak directly to a codefendant physician, since he or she was represented by counsel and it would be a breach of legal ethics to do so, and what the codefendant said in the interview might have to be disclosed.

This assumption was based on the concept that by filing suit for malpractice or personal injury, a patient has consented to disclosure of the confidential information that was given to treating physicians. Thereafter, a physician could be treated like any other type of witness, subject to informal interviews by counsel for any party as long as the physician was willing to speak. Many physicians did so, where, for example, they could avoid sitting through a time-consuming deposition by answering a few questions on the phone about some entries in a hospital chart or office records that had previously been sent to a defense attorney by subpoena or medical records authorization.

The Ex Parte Interview

The plaintiff's bar gradually came to the realization that many treating physicians were defense-oriented by nature and inclined to cooperate with the defense. However, there was something that could be done to stop it. The concept developed that there was simply something wrong with a plaintiff's own treating physician cooperating with the other side on a voluntary basis. In order to paint a more sinister picture, the Latin term ex parte ("for one side only" or "out of the presence of the other side") came into vogue. Just as a virtuous and honest judge should not have an ex parte private communication with one litigant outside the presence or without the permission of the other side (who knows what business might be transacted behind closed doors), a plaintiff's treating physician should not have ex parte communications with defense counsel, who might improperly influence a physician to testify against his or her patient.

Courts in several states, led by influential decisions in Minnesota[2] and Illinois,[3] began to question the old assumptions and find fault with ex parte interviews of physicians by defense counsel.[4] These courts reasoned, among other things, that there is an underlying duty of loyalty or a fiduciary obligation that binds the physician to the patient despite the exceptions in the physician-patient privilege and that there is or may be some residue of confidential information that the plaintiff did not consent to disclose by filing suit. The possibility that such information might be, disclosed outside the presence of plaintiff s representative or the mere prospect of voluntary cooperation with the defense would therefore tend to "chill" the close and trusting relationship between patient and physician.

Courts that accepted this line of reasoning tended to emphasize that the forms of discovery specifically allowed by the rules, i.e., document subpoenas and physician depositions, provided adequate means for the defense to find out all relevant information in an appropriately protected setting. None of these decisions, of course, has discussed whether, in the interest of fairness, plaintiffs' counsel should also be prohibited from having ex parte communications with treating physicians to avoid any suggestion that they might improperly influence or shade a physician's testimony.

Other courts have rejected the idea that, even though the patient waived the protection of the physician-patient privilege by filing suit, there is still something in need of protection that requires that ex parte communications by defense counsel be prohibited. In general, these courts have not been troubled by the ability of both physicians and defense attorneys to stay within ethical bounds during the course of informal interviews. They have also expressed the desire to promote informal and inexpensive discovery in the form of witness interviews. Some courts have even referred to counsel's right to speak informally to all witnesses who have relevant knowledge in the absence of an affirmative legal prohibition, while other courts in this group have set ground rules by requiring the plaintiff to sign an authorization for interviews that would delineate appropriate areas of inquiry.

Application of the Privilege

Against Hospitals

Not surprisingly, many of the decisions on both sides of the issue arose out of medical malpractice cases. While the same considerations would apply to ex parte communications with treaters in any personal injury case, the stakes are usually higher and, in the minds of some courts, the potential for abuse seemingly greater where malpractice is the basis for the action. The old bugaboo of the "conspiracy of silence" among physicians appears to have motivated courts to hunt for impropriety and to find it in the guise, for example, of defense counsel who work for the treater's malpractice carrier or of the treater used as a defense witness when he or she owed a duty of "total care" to the plaintiff that included only giving testimony that helped the plaintiff.

Where the courts have imposed a prohibition on ex parte communication by the defense, the result has typically been that unaffiliated subsequent treating physicians have been questioned by deposition rather than over the phone, even if the only real benefit to the litigation was to translate illegible chart entries. While the increase in costs for physicians' and attorneys' hourly fees and for court reporters has not been inconsiderable and physicians may be less candid as a result, malpractice and other defendants have in most states not suffered major damage to their ability to defend themselves due to such rulings.

However, courts in Illinois have extended the prohibition against ex parte communication in a radical fashion to bar contact with health care professionals who are affiliated with the defendant. These rulings have placed real impediments in the way of preparation of an adequate defense by hospitals and physicians, even though a couple of the decisions have recently been vacated by a higher court on technical grounds. Because these decisions flow from a case that is heavily relied on in other states to support prohibitions against ex parte communication,[3] the extensions of the rule in Illinois could presage similar damaging decisions elsewhere. These extensions are:

* Counsel for a defendant hospital may not communicate with a resident physician in its employ who treated plaintiff after an accident at the hospital.[5]

* Counsel for a defendant surgeon may not communicate with an operating room nurse, even though the privilege only covers physicians and surgeons.[6]

* Counsel for a defendant professional corporation may not communicate with a nondefendant subsequent treater in a different specialty who is a member of the professional corporation.[7]

* Counsel for a defendant hospital may not communicate with a resident physician in its employ for whose negligence it is allegedly liable.[8]

* Counsel for a defendant hospital may not communicate with any nurse in its employ for any reason.[9]

These strange and disturbing results suggest some questions, such as what information would the resident on call obtain from the patient that would not be shared with the hospital through entries in the chart? What confidential information could an anesthetized patient possibly have passed on to an operating room nurse that the surgeon would not also know? Why is a member of a professional corporation not aligned with the corporation when it is sued? Why should a hospital be forbidden to talk to its own resident for whose alleged negligence it admits it is responsible? How can a defendant even prepare answers to plaintiff's interrogatories without access to its own employees?

Moreover, is any of this really necessary to maintain the confidence of the general public in physicians? The rationale for the privilege is to encourage patients to disclose everything, even embarrassing information, to their physicians. But the expectation of privacy is sharply reduced in a hospital or clinic setting where the patient may be seen by a legion of specialists, residents, students, nurses, therapists, and technicians whom the patient most likely never met before and will never see again. This faceless horde enters everything of any consequence in the chart, which is an open book after suit is filed. It is difficult to see how permitting a hospital or clinic attorney to speak informally to its employee years later could "chill" a physician-patient relationship. It would be a rare patient indeed who would give a moment's thought to such a problem.

Conclusion

The punitive application of the physician-patient privilege against hospitals and physicians that has occurred in Illinois has been based on speculation rather than concrete evidence that ex parte interviews have a deleterious effect on the delivery of health care. The courts have drawn artificial lines between a hospital and its house staff and nurses and between members of the same medical group that have no basis in the actual practice of medicine and that only seem evidence of a bias against health care providers.

Unfortunately, the rulings in these cases stem from the premise that there is something unseemly in allowing defense counsel free access to treating physicians even though the physician-patient privilege has been waived by the filing of the suit. That same premise has motivated numerous courts around the country to restrict ex parte interviews, and there is little to prevent these courts from extending their prohibitions to the same absurd lengths. The potential impairment to health care providers' ability to defend themselves is something that hospital defense counsel should be warned about and that they should vigilantly guard against.

References

[1.] AMA Code of Medical Ethics Current Opinions, Principles of Medical Ethics, Principle IV, 1992. [2.] Wenniger v. Muesing, 307 Minn. 405, 240 N.W.2d 333 (1976). [3.] Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952 (1986), app. denied, 113 Ill. 2d 584, 505 N.E.2d 361, cert. denied, 483 U.S. 1007 (1987). [4.] A list of jurisdictions on each side of the question can be found in Ropiequet, J., "Ex Parte Contracts and the Physician-Patient Privilege," 31 For the Defense 25 (August 1989). At least four states on the list have since switched sides. [5.] Ritter v. Rush-Presbyterian-St. Luke's Medical Center, 177 Ill. App. 3d 313, 532 N.E.2d 327 (1988). [6.] Roberson v. Liu, 198 Ill. App. 3d 332, 555 N.E.2d 999 (1990). [7.] Testin v. Dreyer Medical Clinic, 238 Ill. App. 3d 883, 605 N.E.2d 1070 (1992), vacated, 1994 Ill. 2exlc 72 (May 19, 1994). [8.] Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 240 Ill. App. 3d 585, 608 N.E.2d 92 (1992), vacated, 1994 Ill. 2exlc 72 (May 19, 1994). [9.] Estate of Riha v. Christ Hospital & Medical Center, No. 81 L 19615 (Cook County Cir. Ct. May 5, 1993).