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Where, When and How Is <i>Ex Parte</i> Communication With a Physician OK?

By Lori G. Cohen and Marcella C. Ducca

In medical malpractice cases, treating physicians, nurses and other providers are key witnesses. They have specialized knowledge of the plaintiff and her medical conditions, and, unlike expert witnesses, they have had the opportunity to personally examine and evaluate the plaintiff outside of the litigation context. They can explain their unique shorthand or abbreviations in the medical records (or read their poor handwriting), provide detail behind the written medical records and lay the foundation for a defendant's causation and damages theories. Because ex parte meetings and discussions with treating physicians can be so informative, they are often seen as invaluable tools for any party permitted to meet with treating physicians.

However, as helpful as these discussions can be for parties who are permitted to meet with treating physicians, these discussions can also be particularly damaging and have long-term ramifications for a party that is unaware of or unable to participate in such meetings. They may also have legal and ethical consequences for parties that attempt to conduct such meetings without familiarizing themselves with the law of their particular jurisdiction.

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