Day on Torts
I apologize for the lack of a post Friday and Saturday. Friday morning I was in North Carolina and did not have access to a computer. By the time I made it to the office I had back-to-back conference calls or appointments until 4:15 and just decided to wait until Saturday morning to blog.
Friday night Joy and I went to the cabin. I got up early Saturday morning but for reasons I do not understand I could not get access to the Internet. I spent several hours riding my early birthday present (a Sea Doo RXT) and messing around in the water.
I got up early again this morning and, surprise, the Internet connection is working. So, I decided to bang out this post before Joy and I meet our friend Buzz at 8:00 a.m. to get in some water skiing before the water gets rough
The Alsip opinion is big news but not unexpected. As reported Thursday afternoon, a plaintiff need not agree and a court may not order that defense counsel can engage in ex parte communications with the plaintiff’s physicians. This ruling is applicable to all personal injury cases, but is of most importance in medical malpractice cases. Why? Because historically some defense counsel have used ex parte meetings to persuade a plaintiff’s treating physicans to testify against the plaintiff in the med mal case.
Now what will happen is that treating physicians who are potential witnesses will get counsel (through SVMIC, the doctor-owned insurance company) and that opens the door to potential mischief. However, the vast majority of those counsel are responsible men and women who will counsel their clients about the dangers of opining on causation without the knowledge of all of the facts. There is still a risk on standard of care testimony being developed by defense lawyer to defense lawyer communications, but as that begins to occur we will try, once again, to demonstrate the bias of the witness and (hopefully) the insurance company connection.
In an effort to avoid the cost of an extra deposition, Plaintiffs’ lawyers should give consideration to allowing defense counsel to meet with treating physicians with plaintiffs’ counsel present.
The Tennessee Supreme Court reached the right result in this case. This decision still allows defendants to get the information they need to defend a case while allowing the the plaintiff to ensure that only discoverable information is communicated between the treating physician and the defense counsel.
Undoubtedly the medical industry lobby will try to introduce legislation to reverse the result in this case. I will let you know when it does.