Ex Parte Communications with Treating Physicians is Not Allowed and that Giving Opinions Without Reviewing Medical Records May Constitute Medical Malpractice.

The Louisiana Supreme Court rendered the per curiam decision of Acara v. Banks, 10-0741 (La.6/18/10). The plaintiff, Ms. Acara, filed a medical malpractice claim against Dr. Bradley Banks after Dr. Banks allegedly gave an opinion in an earlier personal injury suit filed by Ms. Acara as to her medical condition without reviewing her medical records. Ms. Acara also complained that Dr. Banks gave a deposition in the earlier personal injury suit without her consent. The district court denied Dr. Banks’s motion for summary judgment and the appellate court denied supervisory relief. The Louisiana Supreme Court reversed the ruling as regards the deposition, finding that plaintiff partially waived the physician-patient privilege when she filed her personal injury suit. The Supreme Court held that the privilege was waived only as to testimony at trial or to a discovery method authorized by the Louisiana Code of Civil Procedure, such as a deposition. While the Supreme Court did not specifically discuss ex parte communications with treating physicians, the ruling has the effect of prohibiting such unauthorized communications since ex parte communications are not an authorized discovery method as evidenced by Louisiana Code of Civil Procedure article 1465.1’s prohibition of verbal communication between defense counsel and a treating physician.

The Louisiana Supreme Court affirmed the district court’s denial of summary judgment on the issue of giving opinions without reviewing plaintiff’s medical records, finding that genuine issues of material fact existed as to whether the standard of care was violated.