A Prescription for the Physician-Don’t Meet With Defense Counsel Privately When Your Patient is in a Law Suit

By Stacy G. Jackson


If you are a health care provider practicing in Missouri, you probably have been or will be a witness in litigation. Workers’ compensation claims, personal injury or medical malpractice; chances are one of your patients has filed a personal injury claim. As a treating physician or health care provider, your opinions are vital. After you receive medical authorizations and records requests, your office will probably receive a phone call from the attorneys for the defendant, wanting to know what you know about your patient in regard to the litigation. They may even tell you that this is a good way to avoid a deposition: an informal meeting just to get your opinions. It seems easier than a deposition and, after all, it is perfectly okay in Missouri. Or at least, it was!


This past August, the Missouri Supreme Court handed down an opinion that non-formal, private meetings between a plaintiff’s health care provider and defense counsel may create violations of the patient’s privacy rights under federal law.

In Missouri, it was a long held practice that as long as defense counsel provided a medical authorization signed by the plaintiff, a health care provider could speak to defense counsel in private, without the presence of the patient or the patient’s attorney. Mind you, it was never encouraged by the courts, and a physician or other provider was not compelled to have a private meeting. But in the case of Brandt v. Med.Def. Assocs., 856 S.W.2d 667(Mo.Banc 1993) (commonly called Brandt II), the Missouri Supreme Court held that in the absence of any state or federal law to the contrary, such actions were permissible.

However, after Brandt II, along came a federal law called the Health Insurance Portability and Accountability Act (HIPAA). HIPAA set some privacy security rules, and compliance with those rules was mandatory by 2003.

In State ex rel. Proctor v. Messina, SC90610, handed down this past August, the Missouri Supreme Court ruled that any private, non-formal communication between a plaintiff’s treating physician and defense counsel created the possibility of a treating physician violating the patient’s privacy rights under HIPAA. And with the recent changes to HIPAA, this could make the physician subject to fines up to $50,000, or imprisonment for up to one year, or both. See 42 U.S.C.A. §1320D-6.

So what should a treating physician or health care provider do? Even with this opinion, there is still much debate in the legal community about how strictly this ruling should be read. But with potential fines and prison time hanging over a health care provider’s head, it would seem best to err on the side of caution: seek the advice of counsel, and as inconvenient as it may be to one’s busy schedule, to be safe give your opinions in the formal proceeding of a deposition.

HIPAA compliance was mandated by 2003, and the Missouri Supreme Court just handed down their decision this year. That allows for roughly seven years of possible HIPAA violations by treating health care providers.

The law is ever-changing and, as a health care provider, your needs will change with it. If you have any questions in relation to how the law is affecting you, please contact Stacy Jackson at sjackson@bmplaw.com.