The office staff of Medical Justice member received an unexpected call the other day. A lawyer said he represented the estate of the practice’s recently deceased patient. The lawyer just wanted to ask the doctor a few questions. No other context. Zip. Nada.
First, a doctor cannot just speak with a lawyer who just happens to call and conform to HIPAA. He would need written verification the doctor can disclose protected health information to the attorney. And HIPAA survives death. So, the fact that the patient is dead changes little. There are exceptions to needing a HIPAA compliant authorization. But, unless you know the context of the reason for the discussion, they don’t apply.
Who could authorize such disclosure? The executor of the estate. So, you’d need to see a signature from the executor.
- Assume the paperwork is in order. What then?
I still don’t see the upside of a free form conversation with this attorney. Perhaps he’s fishing for information to decide whether to sue another doctor. Or to sue you. In that case, you’re unlikely to “talk him out of it.” But, you may just talk him into it.
If the attorney is trying decide whether to sue and who should be sued, he needs to make that determination the old fashioned way. Get the medical records and have an expert review the chart.
If the attorney still wants your story as a treating doctor, he can depose you if and when a party is actually sued. Everything would be on the record. And you could ask your professional liability carrier whether they can send an attorney to sit next to you during the deposition . If you’re a defendant, you carrier will obviously supply an attorney.
So, there you have it. Don’t set yourself up to become an easy defendant. Any such conversation should be done by the book- and formally.
What do you think?
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Exactly. Simple and straightforward. Just say no.
Be aware that lawyers have been known, on occasion, to be quite persistent. What they can’t do is force you continue the conversation. It’s not rude to hang up on someone doing that. It’s rude of them to initiate and continue the call.
I suspect it’s also unethical, but I’ll defer to Jeff on that question. What say you, Jeff?
If a lawyer knows you are represented by an attorney in initiating a potential adversarial proceeding against you, they are ethically foreclosed from communicating with you except in the presence of your counsel. If a lawyer does not know if you are represented, the ethical thing they should say or write: “If you are represented by counsel, please let me know, and I will direct all further communication to you through your attorney.”
Why is the office staff even letting such an attorney through to talk to the physician? This is a case where the physician’s office staff needs better training to not let such calls through. In addition this is one of those cases where the physician should have his attorney return the call to the calling attorney to find out what is at issue. The physician should never communicate with opposing counsel without his attorney (preferably supplied by his malpractice carrier) present. Physicians in trying to be helpful might be tempted to call the attorney back. They shouldn’t. If there is an issue that develops it should be handled through the normal formal channels, request for a deposition and if needed a subpoena.
As per the question of it being ethical or not for the attorney to contact the physician, there is absolutely nothing unethical about it. It is a fishing expedition and if the physician is so unaware as to his legal rights such as to fall into this trap, then it is a trap borne of his own ignorance. Physicians have a duty to be aware of their legal rights, and seek legal counsel when confronted with legal issues. Physicians may be great healers but typically know next to nothing about the law or their rights and responsibilities under the law. Whether it is employment law, unemployment law, bankruptcy law, malpractice law, medical staff law, healthcare law as it pertains to board or medicine actions, wills and trusts and estate law, business law, tax law, contract law, partnership versus incorporation issues, physicians will during the course of their career touch on many or all of these different areas. Life is complex, medical practice is increasing complex, and involvement of physicians in complex areas of law are increasing. Most physicians are ill prepared for these issues if the medical forums that I have seen are any indication. The old saw was that there was no excuse for ignorance of the law. But as the law has gotten more complex, no one, not even attorneys can be experts in every aspect of the law. The best advice is to seek legal counsel early before you give unknowingly give up part or all of your rights.
This situation reminds me of Youtube videos I saw about the dangers of “volunteering information to police” who are actively investigating a crime.
All the lawyers say NEVER do this, (without your attorney present) even if the questions seem quite innocuous and you are quite confident you can answer them without incriminating yourself.
While lawyers don’t have the power police have during an active police investigation (that us unless they work for the FBI or a national security agency), they still have the power to cause you great damage.
There is virtually NO up-side to your answering their questions. An exception would exist if they wish to hire you as an expert. But that would have nothing to do with any patient you are aware of…and is certainly not your patient. I have been hired for expert evaluations by attorneys. But they were never concerning my own patient.
I assume Medical Justice is routinely hired by counsel due to his amazing qualifications and experience. But those were never about his own patients.
Michael M. Rosenblatt, DPM
I would wonder why an attorney would be contacting you. What other reason than to fish for a case. I would generally not talk to attorney at all. If there is some question to be answered, then set the bar high and make them work for it. The attorney may be trying to establish your personality to ascertain your demeanor and credibility as a witness. I would just say I am too busy unless this has to do with an actual filed case, in which case I would ask him to send his questions in writing to my attorney.
For us physicians the most reasonable may well be, “The less said…The better!” Respectfully submitted….