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Too Much Company Required: Plaintiff Attorneys at Defense Attorney Meetings with Healthcare Providers

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Bruce A. Vande Vusse
Foster Swift Medical Malpractice E-News
December 2, 2010

It is improper and an abuse of a trial court's discretion to require that a plaintiff or his/her attorneys be notified and allowed to attend a defense attorney's meeting with a plaintiff's treating healthcare providers during personal injury litigation.  That ruling was made by the Michigan Court of Appeals in a unanimous published opinion issued November 23, 2010. Szpak v Inyang, ___ Mich App ___, ___NW2d ___, 2010 WL 4751765

In the context of seeking a HIPAA-compliant Qualified Protective Order (QPO) allowing defense attorney meetings with a plaintiff's treating healthcare providers, a trial court may impose conditions "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense".  In ruling on defense requests for QPOs allowing ex parte meetings, a number of trial courts impose plaintiff attorney-requested conditions that they be notified of the meetings and be allowed to attend.  Plaintiff attorneys argue that defense attorney-only meetings allow defense attorneys to intimidate healthcare witnesses and raise the specter of inappropriate topics of conversation, including malpractice generally, litigation impact on insurance premiums and mutual acquaintance considerations.

In its opinion, the Court of Appeals noted that a trial court's authority to impose conditions in a QPO requires a showing that justice required the imposition of the condition and that there were specific facts in that litigation supporting a reasonable concern for intimidation, harassment or the like.  Without such a showing, it is an abuse of a trial court's discretion to impose such conditions.  The generalized danger of intimidation is not enough to warrant imposition of such conditions.

In the post-HIPAA era, it is common practice for defense attorneys at the outset of litigation to ask for a QPO allowing ex parte meetings with healthcare providers, since the treating healthcare providers are often critical witnesses in litigation on topics relating to pre-existing medical conditions, medical history, causal connection and damage issues.  If brought before any adverse history has developed in that particular litigation, only an attorney's general reputation for intimidation and misconduct could be the basis for a plaintiff's request for the imposition of conditions requiring notice and attendance of the plaintiff's attorney at the meetings.  As few attorneys carry that kind of notorious reputation, it should be a rare, if not nearly impossible, burden for a plaintiff to prove to a court that such conditions are required.