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Nurse placed feeding tube in trachea: issues re attorney contact.

NURSES INVOLVED IN A SUIT FOR MEDICAL MALPRACTICE, OR MERELY EMPLOYED BY A HOSPITAL INVOLVED IN SUCH A SUIT SHOULD BE AWARE OF OUTSTANDING COURT ORDERS. That was illustrated in this Arizona case in which a trial court restricted contact of certain parties and their counsel from contacting hospital employees.

ALESHA RIDDLE WAS BORN WITH SEVERE MEDICAL PROBLEMS. She was admitted to Phoenix Children's Hospital (PCH) for treatment, and remained there for many months. Her parents, Lesa and Joseph Riddle, alleged that while Alesha was at PCH, Nurse Lindy Teraji, a PCH employee, negligently placed a feeding tube into Alesha's trachea instead of her stomach, causing food to go into her lung, resulting in catastrophic and permanent injuries. Following this incident. Alesha continued to be treated at PCH by many different physicians and other personnel. Her Treatment continued through the time that the Riddles tiled suit against PCH and Nurse Teraji. The Riddles filed a motion to bar communications between PCH and/or its counsel and PCH employees who had treated or were treating Alesha, other than any employees who were affirmatively alleged to be liable. The trial court granted the motion. PCH later filed a "Motion to Permit Ex Parte Communications Between Counsel and Phoenix Children's Hospital Employees Who Treated Plaintiff Alesha Riddle." PCH also addressed the upcoming deposition of Dr. Jeffrey Pearl, a PCH-employed surgeon who had performed multiple surgeries on Alesha. PCH contended that the trial court's ruling prevented it from adequately preparing Dr. Pearl for his deposition or effectively providing him with legal counsel. The trial court issued an order treating PCH's motion as a motion for reconsideration and denied it. Regarding Dr. Pearl, the trial court ruled that PCH, if it chose, could retain the services of an attorney to represent him at his deposition. Further, the trial court ordered that should PCH retain counsel for that purpose, that counsel shall not communicate with either PCH's counsel or PCH concerning anything related to the care and treatment by the treating physician with respect to the Alesha. The trial court also ordered that PCH could not communicate what transpired between Dr. Pearl and counsel. Following PCH's notice of its intent to file a special action appealing the orders of the trial court to the Court of Appeals of Arizona. The trial court stayed discovery pending the outcome on the appeal.

THE COURT OF APPEALS OF ARIZONA FOUND THAT THE USUAL DOCTOR-PATIENT PRIVILEGE DID NOT APPLY DUE TO THE EMPLOYER-EMPLOYEE RELATIONSHIP. Accordingly, the court held that it need not address the scope of any attorney-client privilege between the employees and PCH's counsel. However, the court noted that the privilege does not relieve an employee "of a duty to disclose the facts solely because they have been communicated to an attorney" [sic]. Further, the court expressed no opinion regarding a trial court's authority to address ex-parte communications with an employee that may improperly influence an employee's later testimony. For these reasons the court held, inter alia, that case law cited did not apply to prevent PCH or its counsel from communicating with PCH's employees who are or were Alesha's treating physicians. The court concluded that since the case law did not apply, the order requiring Dr. Pearl to have separate counsel was not supported by the law. Thus, the court accepted jurisdiction of PCH's special action and granted relief to it by vacating the trial court's orders dated January 8, 2010, and June 3.2010.

REVIEW OF COUNTERVAILING PUBLIC POLICY CONCERNS LED THE COURT TO HOLD THAT THE ADVANTAGES IN THE INFORMAL EX-PARTE PROCEDURE WERE OUTWEIGHED BY THE DANGERS TO THE DOCTOR-PATIENT AND ATTORNEY-CLIENTREL ATIONSHIPS. The court agreed wholeheartedly with the Supreme Court of the State of Washington, which held, in substance, that the unique nature of the physician-patient relationship and the dangers which ex-parte interviews pose, justify the direct involvement of counsel in any contact between defense counsel and a plaintiff's physician. Accordingly, based upon the provisions of Arizona law and public policy, the court held that defense counsel in a medical malpractice case may not engage in non-consensual ex parte communications with plaintiff's treating physicians. The court distinguished this case from the cited case, pointing out that it did not consider the issue of access by defense counsel to treating physicians in the context of physicians employed by an institutional defendant. The court noted that the parties disagreed whether it was possible or likely that some of the physicians involved in the cited case were, in fact, hospital employees. Phoenix Children's Hospital, Inc. v. Grant, ICA-SA 11-0170 AZAPP1 (11/1/2011)-AZ
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Publication:Nursing Law's Regan Report
Date:Dec 1, 2011
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