Lamson, Dugan and Murray, LLP, Attorneys at Law

Expanding Physician-Patient Confidentiality

Posted in HIPAA, Litigation Tips, Medical Malpractice, Risk Management

On December 20, 2012, the Florida Supreme Court expanded the already far reaching scope of doctor-patient confidentiality.  In the case of Hasan v. Garvar, 2012 WL 6619334 (Fla.), a patient sued a dentist (referred to as Dentist #1 for purposes of this post) after the dentist failed to diagnose and treat a dental condition resulting in a bone infection.

The patient subsequently sought treatment from a second dentist.  (Dentist #2).  Dentist #2 was not named in the patient’s lawsuit.  Even so, Dentist #2’s insurer hired and paid for an attorney to meet with Dentist #2 prior to a deposition related to the lawsuit.  The same insurance company insured both dentists and paid for both lawyers.

The Florida Supreme Court found that the doctor-patient privilege prohibited the pre deposition meeting between Dentist #2 and his attorney.  The Court was not comforted by the assurances of the lawyer for Dentist #2 that only non privileged information would be discussed in the meeting.

What is the take away? Unless a treating physician has been sued or reasonably expects to be sued for malpractice, he or she may not engage in any ex parte (i.e., conducted for the benefit of one party) meetings with an attorney provided by the defendant’s insurer, even if the physician does not intend to discuss any privileged information.

It is unclear whether the Nebraska Supreme Court would go this far in expanding the scope of the privilege.  It is, however, the rule in Nebraska that a suit that places a person’s physical condition at issue waives the physician-patient privilege as to that condition only.  Physician-patient communications relating to medical care for conditions unrelated to the condition at issue in the lawsuit remain privileged.  HIPAA arguably adds another layer of confidentiality.  The best practice is probably to decline any requests for ex parte meetings with attorneys.  Sometimes the patient will provide a written waiver to allow you to speak with his or her attorney, but Hasan suggests that great care must be taken to be certain that this waiver is broad enough to protect you should an issue arise later.

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