MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2007-03
Does Ex Parte Contact with Subsequent Treating Physician Violate Rule 4.4 and, Conversely, Does Failure to Contact Physician Violate Rule 1.3
Your firm represents health care providers in professional malpractice cases, in the course of which you must file a Certificate of Qualified Expert attesting to your client’s compliance with applicable standards of care. You have inquired whether, in light of the Health Insurance Portability Accountability Act of 1966 (“HIPAA”), 42 U.S.C. § 1320(d) et seq., your firm, as defense counsel, may ethically contact a plaintiff’s subsequent treating physician ex parte to request a review of the plaintiff’s medical records and render an opinion as to the defendant’s (your client’s) compliance with the applicable standard of care.
Your inquiry is premised upon several legal propositions. Inasmuch as the Committee’s Guidelines indicate that it “does not issue opinions on questions of law,” the Committee will accept as accurate your recitation of the following propositions:
1) A Plaintiff’s subsequent treating physician may testify adversely to his patient;
2) As a consequence of HIPAA, Maryland defense counsel may not engage a plaintiff’s subsequent physician in ex parte communications about that plaintiff’s protected health information without prior patient consent or a court order (Law v. Zuckerman, 307 F.Supp.2d 705, 711 (D.Md.2004)); and
3) As one court has observed, “[t]o shield [a subsequent treating health care provider] from a proper ex parte interview by Defendants by virtue of standing on the strict interpretation of HIPAA as precluding such interviews, would be tantamount to denying the Defendants of their right to the effective assistance of counsel” (Bayne v. Provost, 359 F.Supp.2d 234, 242 (D.N.Y. 2005)).
Your inquiry notes, on the one hand, that Maryland Lawyers’ Rules of Professional Conduct, Rule 1.3 provides that “[a] lawyer shall act with reasonable diligence … in representing a client,” and you observe that “[c]alling a subsequent treating physician as a standard-of-care expert has proven very effective in convincing juries to return defense verdicts.”
On the other hand, you also note that Rule 4.4(b) provides that “[i]n communicating with third persons, a lawyer representing a client in a matter shall not seek information relating to the matter that the lawyer knows or reasonably should know is protected from disclosure by statute or by established evidentiary privilege, unless the protection has been waived….” (In this context the Committee notes that Rule 4.4(b) does not define those matters which are “protected from disclosure by statute or … privilege”; it simply requires that any such independent confidentiality or privilege be honored.)
Based upon the foregoing perceived tension between Rules 1.3 and Rule 4.4(b), your inquiry culminates in the question whether “if [you] do not engage subsequent treating physicians in ex parte communications regarding standard of care issues … [you] then risk running afoul of Rule 1.3″?
The short answer to your question is “No, the Committee does not believe that complying with Rule 4.4(b) would cause you to ‘run[] afoul of Rule 1.3.'” On the contrary, the Committee believes that compliance with Rule 4.4(b) precedes compliance with Rule 1.3.
In the Committee’s opinion, the obligations imposed by Rule1.3 (which you refer to as the duty to “zealously defend” your client’s interests), are constrained by the rest of the Rules and other law. The commentary to Rule 1.3 bears this out, stating that “[a] lawyer … may take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor [emphasis added].” In other words, the duty of “diligence” found in Rule 1.3 is constrained by those boundaries established by other legal and ethical obligations (e.g., HIPAA and the rest of the Maryland Lawyers’ Rules of Professional Conduct, including Rule 4.4(b)). In essence, Rule 1.3 imposes upon lawyers the duty to represent clients with reasonable diligence within the bounds of all other applicable legal and ethical obligations. The Committee therefore sees no conflict between the two Rules.
Finally, the Committee does not believe the inquiry you have presented is fundamentally an ethical question but believes instead that it is a legal question relating to whether HIPAA precludes, or merely redefines the parameters of, a tactic formerly available in medical malpractice cases, and the Committee further believes that how defense counsel may accomplish the ends of engaging a subsequent treating physician to testify as an expert in the wake of HIPAA (i.e., though waiver, consent, court order or otherwise) is a legal question which the Committee on Ethics will not address.
Opinions of the Committee may be obtained from the MSBA’s website: www.msba.org.