Opinion
No. 01-2382-CM.
January 8, 2002
MEMORANDUM AND ORDER
Pending before the Court is Defendant's Motion to Compel Medical Authorization (doc. 12). More specifically, Defendant seeks an Order directing Plaintiffs to execute and provide to counsel for Defendant an unrestricted medical authorization which would allow counsel for Defendant to engage in ex parte communications with Mr. Watson's treating physicians. Plaintiff opposes the Motion to the extent it seeks permission to engage in ex parte communications with the medical providers at issue but does not oppose signing a medical consent authorizing Defendant to obtain all medical records of Mr. Watson. Thus, the issue before the Court is the propriety of ex parte interviews by Defendant with Plaintiff's treating medical providers.
As a preliminary matter, a plaintiff waives the physician-patient privilege by bringing an action in which his or her medical condition is an element of the claim. Lake v. Steeves, 161 F.R.D. 441, 444 (D.Kan. 1994) (citing K.S.A. 60-427(d)). Moreover, the Federal Rules of Civil Procedure do not bar informal, private interviews of witnesses not designated as experts. Id. (citing Bryant v. Hilst, 136 F.R.D. 487 (D.Kan. 1991); Clark v. Homrighous, 136 F.R.D. 186 (D.Kan. 1991)). In fact, courts in this district consistently have permitted ex parte interviews with treating physicians when such treating physicians are not listed as experts. Lake v. Steeves, 161 F.R.D. 441 (D.Kan. 1994); Evertson v. Dalkon Shield Claimants Trust, No. 82-1021-MLB, 1993 WL 245972 (D.Kan. June 2, 1993); Dodd-Anderson v. Stevens, No. 92-1015-MLB, 1993 WL 135426 (D.Kan. Apr. 2, 1993); Bryant v. Hilst, 136 F.R.D. 487 (D.Kan. 1991); Clark v. Homrighous, 136 F.R.D. 186 (D.Kan. 1991). As with any fact witness, however, many of these cases note that such treating physician may confer — or refuse to confer — with a litigant or his or her representative. No party is entitled to exercise any coercion to obtain a conference with a treating physician or to preclude one. Lake v. Steeves, 161 F.R.D. 441 (citing Bryant, 136 F.R.D. at 492-93).
In support of its opposition to Defendant's request, Plaintiff sets forth an excerpted paragraph from the case of Simpson v. Bridgestone/Firestone, Inc., No. 93-2082-JWL (D.Kan. Oct. 21, 1993), which prohibits a defendant from conducting ex parte interviews with treating physicians. The Simpson court held that the waiver of the physician-patient privilege under K.S.A. 60-427(d) was not absolute, and that unrelated matters may still remain privileged. The Simpson opinion does not discuss any of the authority cited above, and does not provide the rationale for its conclusion that the 60-427(d) operates as only a partial waiver of the physician-patient privilege.
"As the Kansas Supreme Court clearly stated in the case of State v. Campbell, 210 Kan. 265, 281, 500 P.2d 21 (1972), '[T]here is no privilege under K.S.A. 1971 Supp. 60-427(d) (physician-patient privilege) in an action in which the condition of the patient is an element or factor of the claim or defense of the patient.'" Lake v. Steeves, 161 F.R.D. at 442. "Both the statutory language and the language of the Kansas Supreme Court are without qualification." Id. "The issue is not waiver or partial waiver, there is simply no privilege available to the plaintiff." Id. (quoting Bryant, 136 F.R.D. at 491).
"The court would note that the Simpson opinion has not been published, nor has it been made available on either Westlaw or Lexis." Lake v. Steeves, 161 F.R.D. at 442.
Based on this discussion, Defendant's Motion is hereby granted to the extent that counsel for Defendant may conduct ex parte, or private interviews, with treating physicians who are not listed as expert witnesses, but, consistent with the caselaw in this jurisdiction, may only do so after first informing those treating physicians of their right to decline to be privately interviewed and providing them with a copy of this Order. It is further ordered that Plaintiff shall sign a medical authorization consistent with the terms of this Order.
IT IS SO ORDERED.