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When a Lawyer “Just Wants to Speak” to You

12/01/16 10:12 AM

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.

  1. 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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Posted by Medical Justice | in Blog | 7 Comments »
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Joseph Horton
Guest
Joseph Horton

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?

retiredMD
Guest
retiredMD

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… Read more »

retiredMD
Guest
retiredMD

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.… Read more »

Michael M. Rosenblatt, DPM
Guest
Michael M. Rosenblatt, DPM

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… Read more »

James Summers
Guest
James Summers

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.

drjosh
Guest

For us physicians the most reasonable may well be, “The less said…The better!” Respectfully submitted….