Ex Parte Communications with Treating Physicians

May Nevada defense counsel have ex parte communications with treating physicians? Most assume the answer is “no” after Leavitt v. Siems, previously discussed here. However, there is a more nuanced view. To highlight this approach, assume two personal injury cases are venued in a Nevada federal court. One is there due to diversity, one is there due to a federal question.

Roberts v. Smith’s Food & Drug Ctrs., Inc., 2014 U.S. Dist. LEXIS 69747 (D. Nev. May 21, 2014) arose from a personal injury claim and was removed to the federal court due to diversity. For reasons I do not understand, treating physician Moris Senegor M.D. wrote Smith’s and its TPA on May 9, 2013 “requesting authorization to perform laminectomy and spinal fusion surgery on the Plaintiff.” Smith’s counsel responded on May 10 and “requested that Dr. Senegor stop communicating with Smith’s and its” TPA, Sedgwick CMS. He also wrote

As you are probably aware, there is current litigation pending between Stephanie Roberts and Smith’s. Therein, Ms. Roberts is claiming that her “current” low back problems are causally related to the accident at Smith’s. Smith’s vehemently disagrees. Further, your letter dated April 8, 2013 1Link to the text of the note incorrectly indicates that “although [Ms. Roberts] had some residual back symptoms. The new problem began in 2009 when she fell at a grocery store.” In fact, Smith’s has retained a medical expert that has concluded that the “The accident caused some minor discomfort that resolved quickly. It did not aggravate her underlying condition.”

Based upon Ms. Robert’s own medical records and the opinions from the medical expert, Smith’s will not agree to pay any portion of the proposed future surgery. Further, given the fact that Plaintiff’s own primary care doctors previously refused to clear her for surgery, we do not feel that any minimal benefit from this extreme surgery is worth the risk of performing the same. As such, Smith’s strongly urges that the surgery not take place and will not be responsible for the expense or any unfortunately (sic) consequences of the same.

Apparently Dr. Senegor did not stop communicating with Smith’s. On September 10, 2013 defense counsel wrote Dr. Senegor and a billing administrator at a hospital with the subject line “Medical Bills of Stephanie Roberts will not be paid by SMITH’S or SEDGWICK.” It then stated:

The pending litigation arises out of an accident in which Ms. Roberts was bumped at a SMITH’S grocery store and fell cutting her hand on a broken bottle. First aid treatment was rendered to Ms. Roberts and she left the store under her own power.

Prior to the accident at SMITH’S, Ms. Roberts had a fusion of her L4-5 vertebrae in 2004. After the surgery, she continued to complain of and treat for problems with her low back. After the accident at SMITH’S, Ms. Roberts symptomatology did not significantly change. Accordingly, the medical expert retained by SMITH’S and SEDGWICK performed an Independent Medical Examination and records review and concluded that the accident at SMITH’S resulted in a minor aggravation of Ms. Roberts pre-existing low back condition. Further, said expert has concluded that the surgery performed in Stockton, California was not causally related to the accident at SMITH’S, but rather is the result of adjacent segment breakdown experienced after the original fusion surgery in 2004.

Based upon the opinions of the medical expert, SMITH’S has made it amply clear that they will not be responsible for or pay for any medical treatment after 2009. As such, you were misinformed when you were told that SMITH’S and/or SEDGWICK should be billed for your recent treatment. Accordingly, by means of this letter, I demand on behalf of SMITH’S and SEDGWICK that you stop from sending bills to them as they are not responsible for and will not pay for any of the medical treatment recently performed by you. Further, I notice that Ms. Roberts is a Medicare beneficiary and I strongly urge you to submit all of your billing statements to Medicare for reimbursement.

Later on plaintiff moved for sanctions, claiming these letters violated Nevada’s doctor-patient privilege in NRS 49.225. To decide this question, the court relied heavily upon Parker v. Upsher-Smith Labs., Inc., 2009 U.S. Dist. LEXIS 126565 (D. Nev. Aug. 27, 2009). In Parker a magistrate judge concluded there is no federal doctor-patient privilege and that ex parte communication between a defendant’s lawyer and the plaintiff’s treating physicians was not prohibited. Parker construed NRS 49.225 to preclude an ex parte interview of a treating physician by a defendant’s lawyer. Yet the privilege “did not prevent depositions or the other usual discovery methods under the Federal Rules of Civil Procedure which may inquire into the relevant medical condition of Plaintiff.” Roberts did not apply Parker because Roberts was based upon diversity, meaning Nevada law applied.

Applied to Roberts, counsel’s letters straddled the line. More importantly though, the ruling was again based upon substantive Nevada law because the case was based upon diversity. I wonder if the result would have been different if federal question jurisdiction had applied.