“Ex Parte Communications” In Malpractice Claims?

Some states (such as Florida) have laws in place which state that some privacy rights are waived when people pursue malpractice lawsuits. Specifically, these laws require patients to sign forms authorizing what are known as “ex parte communications” before filing a malpractice claim.

This effectively allows the attorney for the doctor or hospital named as the defendant in a malpractice suit to obtain personal health information about you, the patient/plaintiff from other doctors, and for this disclosure to take place without the presence of you or your attorney.

Frighteningly, some courts have upheld these laws as constitutional, even though plaintiffs have argued that they violate the right to privacy.

This potentially allows for the release of very private medical information, some of which is unnecessary, and without any kind of safeguard in place to protect against that information getting out beyond the malpractice case. Sadly, courts have also ruled that these state laws do not violate the federal Health Insurance Portability and Accountability Act (HIPAA), which prevents disclosure of personal medical information (except in certain circumstances).

What About Malpractice Claims in Louisiana?

Fortunately, Louisiana statutory law specifies that an attorney may not conduct ex parte communications with a plaintiff’s health care professionals. Specifically, the law states that in medical malpractice claims, information about a patient’s current treatment or physical condition may only be disclosed pursuant to testimony at trial or to one of the discovery methods allowed for. Because Louisiana’s law is more stringent than HIPAA’s requirements, plaintiffs bringing malpractice claims here have a greater degree of safety when it comes to protecting the privacy of their medical and health records.

Specifically, the general rule of privilege states that a patient has a privilege to refuse to disclose (and prevent another person from disclosing) a confidential communication made for the diagnosis or treatment of their health condition. This involves the patient and his or her representative, healthcare provider (including therapists, not only physicians), or the healthcare provider’s representative.

However, it is still key to have an experienced medical malpractice attorney representing you in a malpractice claim because there are some caveats for what can be released during discovery and at trial. How state law defines certain terms such as “confidential communication” and what exceptions are allowed, particularly for the defense of the healthcare provider in the malpractice action, can still be tricky to figure out and work around. For example, defendants have tried to argue that certain communications have not violated the healthcare provider-patient privilege because there is no privilege related to factual matters pertaining to liability in medical malpractice claims (as in, any discussions not related to treatments or physical conditions are fine to take place between your doctor and the defense attorney).

Our Louisiana Medical Malpractice Lawyers Can Help

If you have been harmed by the negligence of your doctor or medical professional, Harrell & Nowak can help. We have recovered millions of dollars in settlements and verdicts on behalf of clients, and we are prepared to help you today. Contact our New Orleans personal injury law firm today for a free, confidential consultation.