Friday, September 7, 2007

Ex Parte Contact With Doctor Creates No Tort Liability

A person employed as a "roughneck" by an offshore drilling company  claimed damages from a slip and fall. His primary care physician sent him to a second doctor for an evaluation. The second doctor was deposed in the litigation and offered opinions on the injuries and the extent of the employee's ability to return to work.

After the deposition but prior to trial, the deposed doctor was contacted ex parte by defense counsel and provided information that affected his trial testimony. The employee sued that doctor, alleging that the ex parte contact breached the physician-patient privilege. The trial court agreed and awarded damages for emotional distress.

On appeal, the Louisiana Supreme Court reversed  , holding that "The privilege is designed to keep a physician from divulging information concerning a patient, not to prevent him from receiving information relating to a patient." While the doctor's trial testimony had upset the employee, "the damages he claims are those that are the result of the inherent characteristics of the adversarial nature of trial- in every trial a party must expect that, at some point, someone will dispute what he or she says or claims...most, if not all, litigants who lose at trial suffer some form of mental anguish or emotional distress." Damages, if any, were not a result of the ex parte communications. (Mike Frisch)

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