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Navigating the Law of Defense Counsel Ex Parte Interviews of Treating Physicians

Posted: 11 Mar 2014  

Joseph Regalia

Independent

Drew Cass

Independent

Date Written: March 11, 2014

Abstract

The rising costs of litigation have hit those involved in healthcare-related cases — including patients, doctors, the courts and lawyers — perhaps hardest of all. Litigation costs have triggered rising malpractice insurance rates for doctors, extensive risk for malpractice attorneys on both sides of the aisle, clogged dockets for courts, and rising fees for clients. Not surprisingly, there is a constant debate about ways that litigation costs in these cases might be reduced. One practice that may alleviate at least some of this waste would cost nothing to implement and has the potential to create large savings: allowing ex parte interviews of treating physicians.Courts have fractured in regulating these interviews — which has culminated in a confusing legal framework at both the state and federal level. Nearly every state, and many federal jurisdictions, differ in how these interviews are regulated, or if they are even permitted.This article will explore the issue of defense counsel ex parte interviews of treating physicians, and what might be done to standardize the practice and balance the interests of all involved.Section I will explore the bodies of law that many courts and litigants have suggested restrict — or even prohibit — ex parte defense counsel interviews of treating physicians. Section II discusses the state of the law regulating ex parte defense counsel interviews across both the federal and state systems.Section III attempts to wade through the policy arguments raised by various state and federal courts in support of the methods each has used to regulate ex parte interviews of treating physicians. Finally, we offer a first attempt at creating a uniform approach to regulating ex parte defense counsel interviews that balances the policy arguments raised by both sides of the bar as well as the courts.

Suggested Citation

Regalia, Joseph and Cass, Drew, Navigating the Law of Defense Counsel Ex Parte Interviews of Treating Physicians (March 11, 2014). Available at SSRN: https://ssrn.com/abstract=2407627

Joseph Regalia (Contact Author)

Independent ( email )

No Address Available

Drew Cass

Independent ( email )

No Address Available

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