Informal Physician Interviews - Where It's Kosher; Where It's Not
By James M. Beck and Mark Herrmann
We?ve blogged a href="http://druganddevicelaw.blogspot.com/2007/08/informal-interviews-docs-for-goose-docs.html"before/a about the importance of both sides in personal injury litigation ? and especially drug/medical device product liability litigation involving the learned intermediary rule ? having equal rights to talk to treating/prescribing physicians. We?ve a href="http://druganddevicelaw.blogspot.com/2007/12/new-york-new-york-arons-allows-ex-parte.html"praised/a courts that have gotten this issue right ? most significantly the New York Court of Appeals in the uArons/u case. We?ve a href="http://druganddevicelaw.blogspot.com/2007/02/hipaa-does-not-preempt-state-litigation.html"debunked/a what we consider a spurious argument HIPAA (the Health Insurance Portability and Accountability Act) interferes with state law on this subject, since that statute specifically excludes civil litigation from its purview.br /br /But we know, because we?re involved in litigation all over the country, that not every (probably not even most) state agrees with us. We also know that in federal MDLs, even though discovery procedure is a procedural issue (ue.g./u, uWilliams v. Rene/u, 72 F.3d 1096, 1103 (3d Cir. 1995); uWeiss v. Astellas Pharma, US., Inc./u, 2007 WL 2137782, at *3-4 (E.D. Ky. June 25, 2007), and the cases we cited a href="http://druganddevicelaw.blogspot.com/2007/08/informal-interviews-docs-for-goose-docs.html"here/a), in practice a lot of judges defer to state practice in this area. So it?s important for defense counsel to know ? realistically, and regardless of our philosophical views on the matter ? where we can talk to the docs informally, and where we?ll get in trouble just for doing what the other side is allowed to do.br /br /Ten years ago, or even less, we?d have agitated for one of the ABA?s litigation committees to prepare a 50-state survey on the question ? and there might even be one of those, but we don?t know of anything recent. We couldn?t find anything on the a href="http://www.abanet.org/abastore/index.cfm"ABA?s website/a.br /br /But one of the great things about being bloggers is we don?t have to go through all that. If we think something?s important, we can do it ourselves, and so we are.br /br /Here?s what we know about ? Okay, what we think we know about ? the status of informal defense access to treating physicians in the fifty states.br /br /Remember, you get what you pay for, so don?t even think about using us as the be all and end all on this (or any other) subject. If you do, please see our a href="http://druganddevicelaw.blogspot.com/2006/10/disclaimer-and-terms-of-use.html"disclaimer/a. Consider what we?ve done here more of a jumping off point.br /br /Also, if you think we didn?t get your state right, please let us know. We?ve been flamed before, so we don?t mind all that much.br /div align="center"br /stronguAlabama/u/strong/divstrongu/u/strongbr /div align="left"From what we can tell, it?s okay to talk to a prescriber informally in the Heart of Dixie. uZaden v. Elkus/u, 881 So.2d 993 1012-13 (Ala. 2003). If a prescriber is willing, it?s okay to hire him/her as a defense expert. uRomine v. Medicenters of America, Inc./u, 476 So.2d 51, 55 (Ala. 1985)./divdiv align="center"br /stronguAlaska/u/strong/divbr /div align="left"Likewise, it seems okay to meet with prescribers informally in the New Frontier, uChristensen v. NCH Corp./u, 956 P.2d 468, 475 (Alaska 1998), although such meetings can?t be compelled against the doctor?s will. uLangdon v. Champion/u, 745 P.2d 1371, 1373 (Alaska 1987). Not that we'd try to do that, anyway./divdiv align="center"br /stronguArizona/u/strong/divbr /div align="left"Don?t do it in the Grand Canyon state, though. Even though any privilege is waived, it?s only waived as to formal means of discovery. Don?t ask us why, but that?s what the court held in uDuquette v. Superior Court/u, 778 P.2d 634, 637, 642 (Ariz. App. 1989). That was almost 20 years ago, but Arizona courts still follow the rule. uSee/u uStyles v. Ceranski/u, 916 P.2d 1164, 1169 (Ariz. App. 1996). The federal courts have gone along. uBenally v. United States/u, 216 F.R.D. 478, 480 (D. Ariz. 2003). Better safe than sorry./divdiv align="center"br /stronguArkansas/u/strong/divbr /div align="left"Again, don?t do it. There?s a rule in the Diamond State that pretty clearly precludes defense counsel from having informal interviews without a plaintiff?s consent. Ark R. Evid. 503(d)(3)(B). The Arkansas Supreme Court enforced that rule in uKraemer v. Patterson/u, 29 S.W.3d 684, 690 (Ark. 2000), and the federal courts go along. uHarlan v. Lewis/u, 982 F.2d 1255, 1264 (8th Cir. 1993)./divdiv align="center"br /stronguCalifornia/u/strong/divbr /div align="left"The Golden State doesn't prohibit informal interviews with treating physicians. In uHeller v. Norcal Mutual Insurance Co./u, 876 P.2d 999, 1005 (Cal. 1994), the Supreme Court rejected a blanket ban, explicitly disapproving uTorres v. Superior Court/u, 270 Cal. Rptr. 401 (Cal. App. 1990). But uHeller/u held that counsel have to comply with the state?s confidentiality of medical information act, Cal. Civ. Code §56, uet seq./u, 876 P.2d at 1004-05, which is too complicated for us to get into here. Federal courts are split. In uCrenshaw v. Mony Life Insurance Co./u, 318 F. Supp.2d 1015, 1024-25 (S.D. Cal. 2004), the court followed uTorres/u, apparently without realizing the California Supreme Court had disapproved it. In uGalarza v. United States/u, 179 F.R.D. 291, 294 (S.D. Cal. 1998) the court approved informal interviews./divdiv align="center"br /stronguColorado/u/strong/divbr /div align="left"In the Centennial State, it?s okay to have informal interviews with physicians, and courts can grant orders authorizing them, as long as the plaintiff is given ?reasonable notice? of proposed interviews, and the interviews are limited to medical matters waived by the plaintiff in the litigation. uSamms v. District Court/u, 908 P.2d 520, 526 (Colo. 1995). Plaintiffs have no absolute right to attend such interviews. uReutter v. Weber/u, 179 P.3d 977, 978-79 (Colo. 2007)./divdiv align="center"br /stronguConnecticut/u/strong/divbr /div align="left"There?s not much law in the Constitution State, but informal interviews seem to be allowed, only they can?t be required by court order. uSee/u uSantaniello v. Sweet/u, 2007 WL 214605, at *3 (D. Conn. Jan. 25, 2007) (rejecting HIPAA preemption of informal interviews; documents must have HIPAA-compliant release); uValentino v. Gaylord Hospital/u, 1992 WL 43134, at *1-2 (Conn. Super. Feb. 19, 1992) (court refused to require interview)./divdiv align="center"br /stronguDelaware/u/strong/divdiv align="left"br /Informal interviews are allowed in the First State, but only with prior consent or by court order. uGreen v. Bloodsworth/u, 501 A.2d 1257, 1259 (Del. 1985). In personal injury litigation, court orders will be routinely allowed if the plaintiff resists. uId./u Any privilege is automatically waived by filing a personal injury action. Del. R. Evid. 503(3). /divdiv align="center"br /stronguDistrict of Columbia/u/strong/divdiv align="left"br /Informal interviews are allowed in the District of Columbia. uStreet v. Hedgepath/u, 607 A.2d 1238, 1247 amp; n.8 (D.C. 1992) (adopting permissive rationale of uDoe v. Eli Lilly amp; Co./u, 99 F.R.D. 126, 128 (D.D.C. 1983)). Federal courts after uStreet/u go along. uMiller v. Hilton Hotels Corp./u, 1993 WL 210866, at *3, 995 F.2d 305 (D.C. Cir. 1993) (non-precedential). /divdiv align="center"br /stronguFlorida/u/strong/divdiv align="left"br /Don?t attempt informal physician interviews in the Sunshine State. There?s no sunshine for defendants. Informal interviews are prohibited by statute, Fla. Stat. §456.057(8); uaccord/u uAcosta v. Richter/u, 671 So.2d 149, 152 (Fla. 1996), unless the physician has been sued, in which case the statute graciously allows the defendant doctor to confer informally with his/her own counsel. /divdiv align="center"br /stronguGeorgia/u/strong/divdiv align="left"br /While informal interviews were allowed by statute in the Peach State, Ga. Code. 9-11-9.2, the Georgia Supreme Court recently held that HIPAA preempted state law and prohibited informal defense contact absent a signed authorization from plaintiff consenting to the interview (which, of course, will never happen). uMoreland v. Austin/u, ___ S.E.2d ___, 2008 WL 4762052, at *3-4 (Ga. Nov. 3, 2008). This ruling, while it may be crazy, is Georgia law./divdiv align="center"br /stronguHawaii/u/strong/divdiv align="left"br /The Aloha State hasn?t said ?aloha? to this issue yet. We can?t say what Hawaii law is on informal defense interviews with treating/prescribing physicians. It?s a free country, which means things are allowed until the law prohibits them, so we?d would go ahead, but proceed cautiously. Be very careful to make sure a Hawaii doctor knows an interview is voluntary, do not get into irrelevant matters, etc. Dot your i?s and cross your t?s. You don't want to be the one remembered for making bad law./divdiv align="center"br /stronguIdaho/u/strong/divdiv align="left"br /There?s not a lot of law in Idaho, but in uMorris v. Thomson/u, 937 P.2d 1212, 1217 (Idaho 1997), the court stated ?the discovery rules do not limit defense counsel?s access to [the treating physician], and the defense is free to speak to the witness if she is willing.? That?s good enough for us to say it looks like the Gem State allows informal interviews./divdiv align="center"br /stronguIllinois/u/strong/divdiv align="left"br /The Land of Lincoln hasn?t emancipated defense counsel to have equal rights with plaintiffs for informal discussions with treating doctors. uBurger v. Lutheran General Hospital/u, 759 N.E.2d 533, 554-55 (Ill. 2001). Far from it. In Illinois, it was even held unconstitutional for the legislature to permit informal interviews by statute. uBest v. Taylor Machine Works/u, 689 N.E.2d 1057, 1100 (Ill. 1997). Don?t do it unless you enjoy being held in contempt of court. uPetrillo v. Syntex Laboratories/u, 499 N.E.2d 952, 962 (Ill. App. 1986)./divdiv align="center"br /stronguIndiana/u/strong/divdiv align="left"br /a name="RANGE!B20"Defense informal interviews with treating physicians are barred in the /aHoosier State as well. ?[E]x parte interviews with a party-patient?s health-care providers by opponent?s counsel impermissibly compromise[] the physician-patient privilege.? uCua v. Morrison/u, 626 N.E.2d 581, 582 (Ind. App. 1993), uadopted amp; incorporated/u, 636 N.E.2d 1248, 1249 (Ind. 1994). Federal courts, however, have been more liberal in allowing informal contacts under the Federal Rules. uE.g./u, uMartin v. CSX Transportation, Inc./u, 215 F.R.D. 554, 557 (S.D. Ind. 2003); uEve v. Sandoz Pharmaceuticals Corp./u, 2002 WL 32153352, at *1 (S.D. Ind. May 16, 2002)./divdiv align="center"br /stronguIowa/u/strong/divdiv align="left"br /While we can?t say it?s 100% foreclosed, we would be very leery of conducting informal treater interviews in the Hawkeye State in light of uRoosevelt Hotel Ltd. Partnership v. Sweeney/u, 394 N.W.2d 353, 356-57 (Iowa 1986). Technically, uRoosevelt Hotel/u held only that plaintiffs can?t be forced to consent to such interviews, but the opinion's language is definitely not helpful. A later case allowed workers compensation defendants to hold all the informal interviews they want. uMorrison v. Century Engineering/u, 434 N.W.2d 874, 876-77 (Iowa 1989). So it's possible, if not likely, that there might be some flexibility here./divdiv align="center"br /stronguKansas/u/strong/divdiv align="left"br /Federal courts in the Sunflower State routinely allow informal defense interviews with treaters. uE.g./u, uHarris v. Whittington/u, 2007 WL 16403, at *1 (D. Kan. Jan. 19, 2007) (describing practice as ?well settled? and citing a bunch of cases). Kansas state courts don?t seem to have addressed the issue./divdiv align="center"br /stronguKentucky/u/strong/divdiv align="left"br /Go for it, guys. The Bluegrass State is amenable to informal defense interviews of treating physician. uRoberts v. Estep/u, 845 S.W.2d 544, 547 (Ky. 1993); uDavenport v. Ephraim Memorial Hospital, Inc./u, 769 S.W.2d 56, 62 (Ky. App. 1988); uWeiss v. Astellas Pharma, US., Inc./u, 2007 WL 2137782, at *3 (E.D. Ky. June 25, 2007)./divdiv align="center"br /stronguLouisiana/u/strong/divdiv align="left"br /There?s a statute in the Pelican State that limits the litigation waiver of the physician/patient privilege to certain specified ?discovery methods.? La. C. Evid. §510(E). This limitation has been held to prohibit defendant?s counsel from interviewing plaintiff?s treating or prescribing physicians informally. uCoutee v. Global Marine Drilling Co./u, 895 So.2d 631, 641-42 (La. App. 2005), urev?d on other grounds/u, 924 So.2d 112 (La. 2006). Watch out in federal court, too. In uIn re Vioxx Products Liability Litigation/u, 230 F.R.D. 473, 476 (E.D. La. 2005), an MDL judge extended restrictive Louisiana law to actions filed anywhere in the country./divdiv align="center"br /stronguMaine/u/strong/divdiv align="left"br /There?s no state court precedent, but a federal court in the Pine Tree State held that physician-patient privilege, even though waived, prohibited informal defense interviews with treaters. uNeubeck v. Lundquist/u, 186 F.R.D. 249 (D. Me. 1999)./divdiv align="center"br /stronguMaryland/u/strong/divdiv align="left"br /Informal defense interviews with treating physicians are just fine in the Old Line State. uButler-Tulio v. Scroggins/u, 774 A.2d 1209, 1224-25 (Md. Spec. App.), ucert. denied/u, 783 A.2d 221 (Md. 2001). A federal district court, uLaw v. Zuckerman/u, 307 F. Supp.2d 705, 711 (D. Md. 2004), construed HIPAA as overriding state law, but as we?ve a href="http://druganddevicelaw.blogspot.com/2007/02/hipaa-does-not-preempt-state-litigation.html"discussed elsewhere/a, that?s a weak argument./divdiv align="center"br /stronguMassachusetts/u/strong/divdiv align="left"br /In the Bay State, we?d hold off on interviewing physicians informally in light of uSchwartz v. Goldstein/u, 508 N.E.2d 97, 99 (Mass. 1987), stating that ?an opposing party should not be free to engage in clandestine, unauthorized conferences with a plaintiff's physician.? uSee/u uGoldstein v. United States/u, 1995 WL 96959, at *1 (D. Mass. Feb. 6, 1995) (applying same rule in federal court)./divdiv align="center"br /stronguMichigan/u/strong/divdiv align="left"br /Michigan has consistently allowed defense counsel to interview treaters informally. uDomako v. Rowe/u, 475 N.W.2d 30, 36 (Mich. 1991); uDavis v. Dow Corning Corp./u, 530 N.W.2d 178, 180 (Mich. App. 1995) (per curiam). Beware, however, of a non-precedential, unpublished opinion asserting that HIPAA preempted the litigation rules of the Great Lakes State. uBelote v. Strange/u, 2005 WL 2758007 at *5 (Mich. App. Oct. 25, 2005)./divdiv align="center"br /stronguMinnesota/u/strong/divdiv align="left"br /The North Star State?s gone back and forth. The current Minnesota physician/patient privilege would, if taken literally, forbid physicians even to give in-court testimony contrary to their patients. Minn. Stat. Ann. §595.02(1)(d). There?s an exception allowing a physician charged with malpractice to confer privately with his/her own counsel. uId./u §595.02(5). We suppose this amendment was intended to overrule uBlohm v. Minneapolis Urological Surgeons, P.A./u, 449 N.W.2d 168, 170 (Minn. 1989), which had allowed informal defense interviews under a prior iteration of the statute. The statute supported a blanket prohibition in In ure Baycol Products Litigation/u, 219 F.R.D. 468, 473-74 (D. Minn. 2003). uBaycol/u refused to follow uFilz v. Mayo Foundation/u, 136 F.R.D. 165, 173 (D. Minn. 1991), which had allowed informal interviews as a matter of federal, rather than state, law./divdiv align="center"br /stronguMississippi/u/strong/divdiv align="left"br /In the Magnolia State, Mississippi Rule of Evidence 503(f) provides that a litigation waiver of the physician/patient privilege ?does not authorize ex parte contact by the opposing party?). In uScott v. Flynt/u, 704 So.2d 998, 1006-07 (Miss. 1999), the court held that evidence obtained through an informal interview was inadmissible. We?d have thought that amounts to a prohibition, except that: (1) in uPoole v. Avara/u, 908 So.2d 716, 725 (Miss. 2005), the court allowed the defendant to use a treater as an expert against a plaintiff/patient, and (2) in uGriffin v. McKenney/u, the court dropped a footnote stating that uScott/u ?in fact states that a defendant is not prohibited from speaking ex parte with a plaintiff?s physician,? but only that ?information divulged by such communication is inadmissible.? 877 So.2d 425, 442 n.3 (Miss. App. 2003). This subsequent precedent leaves things sufficiently up in the air that we?d strongly recommend talking to a Mississippi lawyer about this before doing anything./divdiv align="center"br /stronguMissouri/u/strong/divdiv align="left"br /In uBrandt v. Medical Defense Association/u, 856 S.W.2d 667, 673 (Mo. 1993), the court overruled prior precedent (uState v. Ryan/u, 776 S.W.2d 389, 395 (Mo. 1989)), and allowed informal defense interviews with treating physicians. uSee also/u uBrandt v. Pelican/u, 856 S.W.2d 658, 662 (Mo. 1993); uState v. Dalton/u, 872 S.W.2d 888, 890 (Mo. App. 1994). Now, in the Show Me State, ?[t]he decision of whether to engage in ex parte discussions with an attorney concerning medical information that is no longer subject to the physician-patient privilege belongs solely to the physician.? uState v. Syler/u, 936 S.W.2d 805, 809 (Mo. 1997)./divdiv align="center"br /stronguMontana/u/strong/divdiv align="left"br /It looks like informal interviews are allowed in the Treasure State. In uJaap v. District Court/u, 623 P.2d 1389, 1390 (Mont. 1981), the court held plaintiffs could not be ordered to consent to informal defense interviews, but didn?t seem to have any problem with the concept of informal interviews itself. uId./u at 1392. Building on uJaap/u, the court in uOstermiller v. Alvord/u, affirmatively held that informal interviews were allowable. 720 P.2d 1198, 1200 (Mont. 1986) (?interview by defendant's counsel can better be described as a means of reviewing a witness?s testimony than as a means of discovery. . . . [I]t was not error to allow the interview to take place?). However, in uHampton v. Schimpff/u, 188 F.R.D. 589, 590 (D. Mont. 1999), without citing uOstermiller/u, the court held that informal interviews were not allowed under uJaap/u. So be careful./divdiv align="center"br /stronguNebraska/u/strong/divdiv align="left"br /In the Cornflower State there?s very little law. Informal interviews were allowed in uScott v. Drivers Management, Inc./u, 714 N.W.2d 23. 36 (Neb. App. 2006), but that was under a special statute concerning worker?s compensation. Our ?free country? comments under Hawaii apply./divdiv align="center"br /stronguNevada/u/strong/divdiv align="left"br /There?s a statute in the Silver State that provides, ?[t]here is no privilege . . . as to written medical or hospital records relevant to an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense.? Nev. Rev. Stat. §49.245(3). Maybe that could be read to allow informal interviews, maybe not. Voluntary informal interviews were okay in uStewart v. Women in Community Service, Inc./u, 1998 WL 777997, at *3-5 (D. Nev. Oct. 7, 1998), but that decision was under federal, not state, law. uId./u at *3./divdiv align="center"br /stronguNew Hampshire/u/strong/divdiv align="left"br /You can?t have informal interviews in the Granite State unless the other side agrees and opposing counsel is present. uNelson v. Lewis/u, 534 A.2d 720, 723 (N.H. 1987). Why bother?/divdiv align="center"br /stronguNew Jersey/u/strong/divdiv align="left"br /The Garden State ostensibly allows informal defense interviews with treating physicians. uStempler v. Speidell/u, 495 A.2d 857, 864-65 (1985); uIn re Diet Drug Litigation/u, 895 A.2d 493, 504 (N.J. Super. 2005). However, parts of New Jersey have become ?a href="http://atra.org/reports/hellholes/report.pdf"judicial hellholes/a,? and in some mass torts, New Jersey trial courts have systematically ignored uStempler/u, and refused to allow informal interviews at all. uE.g./u, uSmith v. American Home Products Corp./u, 855 A.2d 608, 625 (N.J. Super. 2003)./divdiv align="center"br /stronguNew Mexico/u/strong/divdiv align="left"br /Informal interviews are a no go in the Land of Enchantment. uSmith v. Ashby/u, 743 P.2d 114, 115-16 (N.M. 1987); uGomez v. Nielson?s Corp./u, 894 P.2d 1026, 1029 (N.M. App. 1995)./divdiv align="center"br /stronguNew York/u/strong/divdiv align="left"br /As we?ve already a href="http://druganddevicelaw.blogspot.com/2007/12/new-york-new-york-arons-allows-ex-parte.html"discussed at some length/a, informal interviews with plaintiffs? treaters are (subject to notice and filling out some forms) allowed, and indeed encouraged, in the Empire State. uArons v. Jutkowitz/u, 880 N.E.2d 831, 837 (N.Y. 2007); usee/u uid./u at 842-43 (rejecting HIPAA preemption)./divdiv align="center"br /stronguNorth Carolina/u/strong/divdiv align="left"br /The Tar Heel State may be a favorable defense forum in other respects, but not when it comes to informal treater interviews. North Carolina law prohibits informal interviews unless the plaintiff gives his or her express consent. uCrist v. Moffatt/u, 389 S.E.2d 41, 45-46 (N.C. 1990)./divdiv align="center"br /stronguNorth Dakota/u/strong/divdiv align="left"br /a name="RANGE!B40"/aNorth Dakota state courts have not ruled on whether defendants may have informal interviews with treating physicians. But federal courts have not been receptive. In uWeaver v. Mann/u, 90 F.R.D. 443, 445 (D.N.D. 1981), the court interpreted the Federal Rules as precluding informal discovery, even while conceding that any privilege had been waived. In uBohrer v. Merrill-Dow Pharmaceutical, Inc./u, 122 F.R.D. 217, 218-19 (D.N.D. 1987), the court refused to compel plaintiffs to authorize informal interviews. In the past twenty-plus years, nothing in the Peace Garden State./divdiv align="center"br /stronguOhio/u/strong/divdiv align="left"br /The Buckeye State has surprisingly little law on this subject for such a large jurisdiction. Federal courts go both ways. In uBouchard v. American Home Products Corp./u, 213 F.Supp.2d 802, 805 (N.D. Ohio 2002), the court found insufficient Ohio precedent to preclude an informal meeting between defense counsel and a treating physician. More than thirty years earlier, another federal judge said such contacts were not allowed. uHammonds v. Aetna Casualty amp; Surety Co./u, 243 F. Supp. 793, 800 (N.D. Ohio 1965) (applying state law). The state courts are essentially silent, while in uIn re American President Lines, Ltd./u, 929 F.2d 226, 227 (6th Cir. 1991), the court had nothing against informal interviews except that they couldn?t be timely scheduled to fit within the trial court's discovery deadlines./divdiv align="center"br /stronguOklahoma/u/strong/divdiv align="left"br /Defense counsel can have informal physician interviews in the Sooner State. uHolmes v. Nightingale/u, 158 P.3d 1039, 1046 (Okla. 2007). There was no HIPAA preemption either. uId./u at 1041./divdiv align="center"br /stronguOregon/u/strong/divdiv align="left"br /There?s no case law on informal physician interviews in the Beaver State, but given the language of Oregon?s physician/patient privilege statute, Ore. Rev. Stat. §40.235(2), we doubt that informal discovery would be allowed, absent consent./divdiv align="center"br /stronguPennsylvania/u/strong/divdiv align="left"br /There?s no privilege, but under Pa. R. Civ. P. 4003.6, informal communication between defense counsel and a plaintiff?s treating physician is prohibited in the Keystone State./divdiv align="center"br /stronguRhode Island/u/strong/divdiv align="left"br /We can?t go informal in the Ocean State either. R.I. Gen. Laws §5-37.3-4 (?Disclosure by a health care provider of a patient?s health care information which is relevant to a civil action brought by the patient against any person or persons other than that health care provider may occur only under the discovery methods provided by the applicable rules of civil procedure . . . . This disclosure shall not be through ex parte contacts and not through informal ex parte contacts with the provider by persons other than the patient or his or her legal representative?)./divdiv align="center"br /stronguSouth Carolina/u/strong/divdiv align="left"br /We think the Palmetto State permits informal interviews. A federal court so held. uFelder v. Wyman/u, 139 F.R.D. 85, 88 (D.S.C. 1991). uBrown v. Bi-Lo, Inc./u, 581 S.E.2d 836, 838 (S.C. 2003), doesn?t appear to be contrary, as it involved a statute that expressly restricted means of communicating with treating physicians in workers compensation proceedings./divdiv align="center"br /stronguSouth Dakota/u/strong/divdiv align="left"br /We?d be reluctant to have informal interviews in the Mount Rushmore State. While not directly on point, uSchaffer v. Spicer/u, 215 N.W.2d 134, 137 (S.D. 1974), cited cases hostile to informal discussions. In uDeNeui v. Wellman/u, 2008 WL 2330953, at *3-4 (D.S.D. June 5, 2008), the court allowed a treater to have informal contact with his own counsel (how generous), but ?agreed? in dictum that defense counsel could not./divdiv align="center"br /stronguTennessee/u/strong/divdiv align="left"br /We can?t have informal meetings with treaters in the Volunteer State any more. uAlsip v. Johnson City Medical Center/u, 197 S.W.3d 722, 724 (Tenn. 2006)./divdiv align="center"br /stronguTexas/u/strong/divdiv align="left"br /Pursuant to statute, Tex, Civ. Prac. amp; Rem. C. §74.052, informal interviews between defense counsel and plaintiffs? treaters are permitted in the Lone Star State. uIn re Collins/u, 224 S.W.3d 798, 805 (Tex. App. 2007). Pre-statute decisions had also allowed such interviews. uDurst v. Hill Country Memorial Hospital/u, 70 S.W.3d 233, 237-38 (Tex. App. 2001); uHogue v. Kroger Store No. 107/u, 875 S.W.2d 477, 480 (Tex. App. 1994). Some older federal courts are contrary (ue.g./u, uHorner v. Rowan Cos./u, 153 F.R.D. 597 (S.D. Tex. 1994)), but the statute clarified the law./divdiv align="center"br /stronguUtah/u/strong/divdiv align="left"br /We just lost the informal communication issue in the Beehive State. uSorensen v. Barbuto/u, 177 P.3d 614, 619-20 (Utah 2008)./divdiv align="center"br /stronguVermont/u/strong/divdiv align="left"br /There?s no law in the Green Mountain State on informal physician-opposing counsel meetings. uSee/u Hawaii. Vermont's a pretty tort-liberal state (usee/u uWyeth v. Levine/u), so be careful./divdiv align="center"br /stronguVirginia/u/strong/divdiv align="left"br /We think that the clear implication of the Virginia Supreme Court?s decision in uMaxey v. Hubble/u, 385 S.E.2d 593, 597 (Va. 1989) - reversing a verdict for ?improper statements? that the defendant did something shady in having informal interviews with the plaintiff's treaters - is that the Old Dominion permits such interviews. Nonetheless, a federal court interpreted Virginia law to prohibit what the court in uMaxey/u had no problem with. uMcCauley v. Purdue Pharma, L.P./u, 224 F.Supp.2d 1066, 1069-70 (W.D. Va. 2002). Thus, be careful what you do in Virginia./divdiv align="center"br /stronguWashington/u/strong/divdiv align="left"br /We can?t have informal contact with treaters in the Evergreen State under uLoudon v. Mhyre/u, 756 P.2d 138, 140 (Wash. 1988), unless we?re in workers compensation proceedings. uHolbrook v. Weyerhaeuser Co./u, 822 P.2d 271, 274-75 (Wash. 1992). Do it, and you?re liable to have your evidence excluded. uRowe v. Vaagen Brothers Lumber, Inc./u, 996 P.2d 1103, 1110 (Wash. App. 2000)./divdiv align="center"br /stronguWest Virginia/u/strong/divdiv align="left"br /West Virginia took the top spot in the 2008 a href="http://atra.org/reports/hellholes/report.pdf"hellhole jurisdiction/a sweepstakes. Why should the Mountain State's law on informal defense contact with treaters be any exception? It isn?t. uState ex rel. Kitzmiller v. Henning/u, 437 S.E.2d 452, 455 (W. Va. 1993)./divdiv align="center"br /stronguWisconsin/u/strong/divdiv align="left"br /The Badger State frowns on informal interviews of treaters by defense counsel. uSteinberg v. Jensen/u, 534 N.W.2d 361, 371 (Wis. 1995) (counsel ?may not engage in ex parte ?discovery?? with treaters, such as ?a private question and answer session?). Informal questions must be in writing with a copy to opposing counsel. uId./ubr //divdiv align="center"stronguWyoming/u/strong/divdiv align="left"br /Wyoming law does not compel physicians to have informal interviews with defense counsel. uWardell v. McMillan/u, 844 P.2d 1052, 1065-67 (Wyo. 1992). uWardell/u pointed out that it was not addressing voluntary cooperation, however. uId./u at 1067 n.15. On voluntary interviews, we?d like to think that the Equality State would follow its nickname. Our comment to Hawaii applies here./div
