Defendant Lawyer Prohibited from Ex Parte Communciation with Treating Physician

In a Louisiana medical malpractice trial, defense counsel had an ex parte meeting with a prior treating physician who was not a party to the case to go over the plaintiff’s medical records, without a medical authorization allowing verbal communication with the health care provider and without advance notice to the plaintiff’s lawyer. Nevertheless, the trial court allowed the physician’s testimony at trial over plaintiff’s objection. The Louisiana Third Circuit Court of Appeal held that the testimony of the treating physician should have been excluded and found that the improperly admitted testimony tainted the jury’s verdict. Ernst v. Taylor, 08-1289 (La.App. 3d Cir. 5/6/09), 17 So.3d 981, writ denied, 09-1262 (La.9/18/09), 17 So.3d 977, citing Coutee v. Global Marine Drilling Co., 04-1293 (La.App. 3 Cir. 2/16/05), 895 So.2d 631, writ granted, 05-756 (La. 5/13/05), 902 So.2d 1000, writ reversed on other grounds, 05-756 (La. 2/22/06), 924 So.2d 112 and Wood v. Am. Nat’l Prop. & Cas. Ins. Co., 07-1589 (La.App. 3 Cir. 12/23/08), 1 So.3d 764.

See also Boutte v. Winn-Dixie of La., Inc., 674 So.2d 299, 306-07 & n.12 (La.App. 3d Cir. 1996), writ denied, 96-1936 (La. 11/8/96), 683 So.2d 268 (the impermissible contact deprived plaintiff of her right to a fair and impartial hearing); and Johnson v. Apeck Construction, Inc., 96-1283 (La. App. 3 Cir. 3/5/97), 692 So.2d 476, 481 (“[c]ontacts by an adverse party or by its representative of a treating physician will not be tolerated, as they strike at the very heart of our system of civil justice.” cf. Hortman v. Louisiana Steel Works., 96-1433 (La.App. 1 Cir. 6/20/97), 696 So.2d 625, 629, Kuhn, J. concurring (“Although contacting an opponent’s treating physician is not in violation of the physician-patient privilege, it clearly impugns upon the Code [of Professional Conduct]’s mandate of professionalism. The practice of law should be a search for the truth, through honorable and professional means long established but perhaps forgotten.”).

This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Dué, Guidry, Piedrahita & Andrews.