King v. Ahrens

• Citation: 798 F. Supp. 1371
• Decision Date: 07 July 1992
• Docket Number: Civ. No. 91-3088.
• Parties: Eula Faye KING, Eddie Dewayne King, and Nancy Marie King, as the Heirs at Law of Franklin J. King, Jr., Deceased, Plaintiffs, v. Robert AHRENS, M.D., Individually and d/b/a the Ahrens Clinic, and Richard Ahrens, M.D., Individually and d/b/a the Ahrens Clinic, a Partnership, Defendants.
• Court: U.S. District Court — Western District of Arkansas

798 F. Supp. 1371

Eula Faye KING, Eddie Dewayne King, and Nancy Marie King, as the Heirs at Law of Franklin J. King, Jr., Deceased, Plaintiffs, v. Robert AHRENS, M.D., Individually and d/b/a the Ahrens Clinic, and Richard Ahrens, M.D., Individually and d/b/a the Ahrens Clinic, a Partnership, Defendants.

Civ. No. 91-3088.

United States District Court, W.D. Arkansas, Harrison Division.

July 7, 1992.

Charles P. Boyd, Jr., Davidson Law Firm, Ltd., Little Rock, Ark., for plaintiffs.

Walter B. Cox, Davix, Cox & Wright, Fayetteville, Ark., for defendants.

AMENDED MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Plaintiffs, Eula King, Eddie King, and Nancy King, instituted this action on September 12, 1991, seeking to hold the defendants liable for the alleged medical malpractice of Dr. Robert Ahrens. As filed, the complaint alleges two causes of action: one under state law for medical malpractice and one for "patient dumping" under 42 U.S.C. § 1395dd. This action is the refiling of an action originally filed on January 9, 1990, in the Marion County Circuit Court. The state court case had been set for trial in February of 1991 but was postponed at the last minute. On May 1, 1991, the state court action was dismissed. Thereafter, the case was refiled in this court.

For background purposes, the factual allegations of the complaint will be briefly summarized are as follows.¹ On April 27, 1989, Mr. Franklin King, Jr., went to the Ahrens Clinic in Yellville, Arkansas. Mr. King complained of pressure pain in the center of his chest which radiated down both arms and ascended up to and through his neck and jaws. Two electrocardiograms (EKG's) were performed. Dr. Ahrens reportedly determined that the EKG's were normal. Mr. King was then given a nubain shot and sent home. Plaintiffs contend Mr. King was in an unstable condition when sent home and had not been given proper care or treatment.

On April 29, 1989, Mr. King went into cardiac arrest at his home. Mr. King was transported to Baxter General Hospital in Mountain Home, Arkansas, where he was proclaimed dead on arrival. The complaint further alleges that an autopsy was performed which indicated that Mr. King had suffered a myocardial infarct on April 27, 1989. This myocardial infarct ultimately led to Mr. King's demise.

This matter is currently before the court on plaintiffs' motion to prohibit communications by defendants' counsel with medical care providers outside the presence of the plaintiffs' attorney. Plaintiffs contend that such ex parte communications are in violation of Rule 35 of the Arkansas Rules of Civil Procedure and Rule 503 of the Arkansas Rules of Evidence. According to plaintiffs, the July 1, 1991, amendments to these state law provisions prohibit ex parte communications with medical professionals unless the patient or plaintiffs have expressly authorized such communications. Plaintiffs request an order expressly prohibiting any ex parte communications between the attorneys for the defendants and any medical/health care provider who has treated the deceased plaintiff or examined the deceased plaintiff.

I. THE ISSUE

Plaintiffs motion is based on the recent amendments mentioned supra, the history leading to the amendments to Rule 35 and Rule 503, prior Arkansas law, a ruling from the Honorable Judge Henry Woods, United States District Judge for the Eastern District of Arkansas, Harlan v. Lewis, 141 F.R.D. 107 (E.D.Ark.1992), and rulings from other jurisdictions specifically prohibiting ex parte communications with treating physicians. Defendants vigorously oppose the motion. Defendants argue that plaintiffs' request is without merit or precedent in the law of Arkansas.

The issue of whether opposing counsel in conducting discovery in medical malpractice cases may interview or otherwise informally contact the injured party's treating physicians or is limited to formal discovery methods such as depositions has been the subject of numerous reported cases at both the federal and state level. It appears that there is no easy answer to this question and a variety of rules have developed. See generally Daniel P. Jones, Annotation, Discovery: Right to Ex Parte Interview with Injured Party's Treating Physician, 50 A.L.R.4th 714 (1986 and Sept. 1991 Supp.), and John L. Ropiequet, Ex Parte Contacts and the Physician-Patient Privilege, For the Defense, August 1989, at 25.

II. THE THEORY AND CASES SUPPORTING PROHIBITION

Cases supporting the prohibition of ex parte communications exhibit concern for the existence of public policy considerations protecting the confidential nature of the physician-patient relationship, the physician's fiduciary relationship, preserving the physician's fiduciary responsibilities in the litigation process, and protecting the physicians from having to make legal determinations regarding the relevancy of the communication to the legal issues involved in the suit. See e.g., Harlan v. Lewis, 141 F.R.D. 107 (E.D.Ark.1992); Manion v. N.P.W. Medical Center, Inc., 676 F.Supp. 585 (M.D.Pa.1987).

The cases advance various considerations. First, it is pointed out that the rules authorize depositions of treating physicians. Thus, the prohibition on ex parte communications only requires resort to the formal discovery rules and does not prohibit discovery. Second, it is argued that ex parte discussions tend to place the physician in the position of having to make legal conclusions about the scope of the privilege and the relevancy of the material requested. In the informal setting the physician is without the aid of counsel and must make these types of decisions for himself. In such a situation, courts have voiced the concern that the physician may unknowingly breach his professional ethics requirements and subject himself to potential liability. Third, courts have expressed some concern that the allowance of informal discovery may jeopardize the confidential nature of the relationship between the physician and patient. It has been suggested that a patient could be inhibited from full and frank disclosure by the thought that his physician might at some future date be involved in informal communications with defense counsel. Fourth, the physician might feel compelled to participate in an ex parte communication. It is not uncommon for the insurer defending the medical malpractice defendant to also insure the physician witness. See e.g., Duquette v. Superior Court of County of Maricopa, 161 Ariz. 269, 778 P.2d 634 (App.1989).

III. THE OPPOSITE VIEW

Courts taking the opposite view, refusing to prohibit ex parte communications, have focused on other factors. First, the courts have identified a number of factors that favor allowing informal methods of discovery including decreased litigation costs, the potential elimination of non-essential witnesses, early evaluation and settlement of claims, ease of scheduling, and greater spontaneity and candor in the interview. See e.g., Doe v. Eli Lilly & Co., 99 F.R.D. 126 (D.D.C.1983). Along with this encouragement of informal discovery is the fact that generally no party has a proprietary right to any witness' evidence and therefore may not ordinarily restrict another party's access to that evidence. Id. Second, it is thought that the physician-patient privilege is already adequately protected under the law and by the physicians ability to merely decline to participate in an ex parte interview. See e.g., Felder v. Wyman, 139 F.R.D. 85, 89 (D.S.C.1991). Third, it has been noted that the availability of sanctions for abuse of the ex parte communications procedure protects the patient. Fourth, the prohibition on informal discovery tends to give the plaintiff an unfair advantage in being able to "control" discovery. In this regard, the court in Doe v. Eli Lilly & Co. noted:

The privilege was never intended, however, to be used as a trial tactic by which a party entitled to invoke it may control to his advantage the timing and circumstances of the release of information he must inevitably see revealed at some time.

The inchoate threat implicit in refusing or qualifying permission to speak to a witness in possession of privileged information operates to intimidate the witness, who is then placed in the position of withholding or divulging what he knows at his peril, and is itself a species of improper influence. It also enables a party so wielding the privilege to monitor his adversary's progress in preparing his case by his presence on each occasion such information is revealed while his own preparation is under no such scrutiny.

Eli Lilly, 99 F.R.D. at 128-29.

IV. DISCUSSION AND RULING

Many of the reported decisions deal with the particular language contained in statutes enacted to protect the physician-patient privilege and as a consequence are of little help in determining the correct rule of law for Arkansas. In others, the state courts have found that their statutory enactments in conjunction with overriding public policy considerations compel prohibition of such ex parte communications. See e.g., Duquette v. Superior Court of County of Maricopa, 161 Ariz. 269, 778 P.2d 634 (1989).

Federal Rule of Evidence 501 requires federal courts to determine issues of privilege in accordance with the law of the state that supplies the rule of decision. Thus, clearly, this court is bound to apply Arkansas law if the issue before the court is one of the application of physician-patient privilege as it probably is.²

The precise issue before the court does not appear to have been addressed by the Arkansas Court of Appeals or the Arkansas Supreme Court. In Duncan v. Cole, 302 Ark. 60, 786 S.W.2d 587 (1990), cited by the plaintiffs, the court merely held that a petition for a writ of prohibition was not the proper vehicle to challenge a trial court order prohibiting any contact by the attorneys for the petitioner with the plaintiff's treating physicians without the attorneys for the plaintiff being present....