October 28, 2010

Communications With Doctors

by Mike Rosetti

Another topic gaining momentum is whether defense attorneys are permitted to meet with treating doctors. Questions concerning privacy and legal ethics are raised by such meetings.

The claimant’s bar has relied on the Moreland v. Austin case, decided by the Supreme Court of Georgia, to argue that “ex parte” communications are not permissible in workers’ compensation cases. The Moreland case, however, is not binding since it involves a medical malpractice claim, which is subject to the provisions of HIPAA. Since workers’ compensation is not subject to HIPAA rules associated with the release of information, the case has limited application.

This is an issue which has grown momentum in recent years. The ability of the employer/insurer’s legal representative to meet with treating physicians and provide all information relevant to a claim, instead of their reliance on limited information from a claimant, has allowed parties to successfully move cases forward. The claimant’s bar’s stated concern is that allowing defense attorneys to speak with doctors skews the resulting medical opinion(s). The reality, however, is that most employers/insurers want to ensure that when doctors issue opinions, it is based on all the facts. Simply put, the best way to confirm that all the facts are known is to meet with or speak to the doctor.

If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or at david.willis@davidandrosetti.com.

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