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Ex-parte contact with plaintiff's treating physicians prohibited.

CASE ON POINT: In re collins, TXCA12 12-06-00078-051407(05/14/2007) S.W.3d -TX

ISSUE: Discovery of each side's evidence in all suits has not only been adopted by virtually all courts, but is, in fact, encouraged. However, one area where courts are careful to recognize limitations in the discovery process is in cases where physician-patient privilege is involved. By bringing suit a patient is virtually opening the door to full disclosure of any and all medical care and treatment related to or relevant to the suit brought. However, this does not give the opposing party the right to ex-parte communication with a party's treating physicians and/or caregivers. In this unusual Texas case, a husband and wife sought and obtained a protective order prohibiting a physician allegedly guilty of medical malpractice from ex-parte contact with the patient's treating physicians.

CASE FACTS: Kelly and James Regian sued Dr. Lester Collins and EC Neurological Institute (EC) alleging that Dr. Collins and EC failed to timely diagnose Ms. Regian's nasopharyngeal carcinoma. Prior to filing suit, Ms. Regian gave notice of her claim as required by Texas law. The notice was accompanied by an authorization for release of health information in the form prescribed by Texas law. In the authorization, Ms. Regian listed a number of physicians and health care providers who had information relevant to the Regians" claim against Dr. Collins and EC. As permitted by the authorization, she also listed several physicians and health care providers to which the authorization did not apply because she contended the health care information in their possession was not relevant to the damages claimed or to her physical, mental, or emotional condition arising out of her claim. After suit was filed, the Regians filed a motion for a protective order seeking to (1) prevent Dr. Collins and EC from having ex parte communications with any of Ms. Regians' nonparty treating physicians, (2) any contacts previously made with Ms. Regian's nonparty treating physicians, and (3) obtain any notes or memoranda describing the content of those contacts. The Regians alleged that these protections were necessary to safeguard information in the possession of her nonparty treating physicians that was not relevant to the lawsuit and, therefore, was protected by the physician-patient privilege. After a hearing, the trial court granted the motion in part and signed an order prohibiting Dr. Collins and EC from having ex-parte communications with any of Ms. Regian's nonparty treating physicians. The trial court granted the Regian's motion for the protective order. Dr. Collins petitioned for a writ of mandamus.

COURT'S OPINION: The Court of Appeals of Texas held that Mandamus will issue to correct a clear abuse of discretion when there is no adequate remedy by appeal. To determine whether the trial court clearly abused its discretion, the reviewing court must consider whether the challenged ruling or order was one compelled by the facts and circumstances or was arbitrary, unreasonable, or reached without reference to any guiding rules or principles. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Interpretation of a statute is a pure question of law over which the trial court has no discretion. Whether an appellate remedy is adequate depends heavily on the circumstances presented and is better guided by general principles than by simple rules. The proponent in an appeal has the burden of showing an abuse of discretion by the trial court and the inadequacy of appeal as a remedy. The court concluded that Dr. Collins did not show that the trial court abused its discretion in granting the Regian's motion for a protective order. Accordingly, the court concluded that it need not determine whether Dr. Collins had an adequate remedy by appeal and denied his petition for a writ of mandamus.

LEGAL COMMENTARY: The trial court's order prohibited postsuit ex-parte communications between Dr. Collins and Ms. Regian's nonparty treating physicians. Thus, the order did not prevent Dr. Collins from obtaining Ms. Regian's health information but only excluded ex-parte communications as a means for obtaining the information. The Regians listed seven physicians who had no relevant information and, thus, possessed only information still protected by the physician-patient privilege. However, they also asserted that the twenty-five physicians or health care providers who possessed relevant information also had some information that was not relevant to the suit and, therefore, protected as well. The documents filed in the case did not show that Dr. Collins challenged that assertion. Consequently, the trial court reasonably could have determined that the prohibition of ex parte communications was necessary to protect Ms. Regian's privileged information. After reviewing the record in the case, the court concluded that the trial court had not abused its discretion in granting the Regian's motion for the protective order. To allow ex-parte communication would virtually destroy the concept of the physician-patient privilege. Ex-parte communications with a patient's treating physicians is diametrically opposed to the entire concept of the physician-patient privilege.

Meet the Editor & Publisher: A, David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American law, Who's Who in America and Who's Who in the World.
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Title Annotation:Medical Law Case on Point
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Geographic Code:1U7TX
Date:Aug 1, 2007
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