The Patient--Physician Relationship: Is the Right to Confidentiality Breached by the Adversarial Ex Parte Interview?

Medicine has respected the need for confidentiality between a physician and a patient for centuries. Civil litigation, however, poses a test to this allegiance by the adversarial ex parte interview. In a patient's civil claim, the attorney opposing the claim may seek to meet a treating physician without the knowledge or presence of the patient or the patient's representative in an ex parte interview. Although the majority of courts and the more recent trends of jurisdictions oppose such meetings in support of stated medical policy, there are a minority of courts that approve of such meetings as a judicious method of evidence gathering. It seems clear, however, that the treating physician retains the right to elect not to participate in such informal discovery. All courts respect the rights of both parties to conduct recognized formal discovery, such as the deposition.