June 6, 2013
Vernie Shoop, et al., Plaintiffs,
United States of America, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
In both the case management conference on May 1, 2013, and the joint case management report, Plaintiffs' counsel asked that defense counsel be precluded from all ex parte communications with the physicians currently treating Plaintiff Vernie Shoop. The Court took the matter under advisement. For the reasons that follow, the Court concludes that defense counsel is not barred from engaging in ex parte communications with Plaintiff Vernie Shoop's treating physicians who are employed by Defendant United States.
A hospital has a right to information gathered by employees acting in the scope of their employment. Phoenix Children's Hosp., Inc. v. Grant, 265 P.3d 417 (Ariz.Ct.App. 2011). In Grant, the plaintiffs alleged negligence against a nurse, but continued receiving medical treatment from other employees of the same hospital. Id. The court allowed defense counsel access to the current treating practitioners, concluding that "a hospital's right to discuss a plaintiff/patient with its own employees exists because the employment relationship exists.... We see no reason why the filing of a lawsuit expands the physician-patient privilege to bar communications that are otherwise allowed." Id. at 421. While Grant concerned a private employer, the fundamental principle remains. The physicians in this case act as agents for their employer, the United States, and information acquired in the scope of their employment is imputed to the United States under Arizona law and may be accessed by the United States and its counsel during litigation. Id. As Grant makes clear, however, the information accessed through ex parte communications must be relevant to the defense of this case. Id. at 422.
Plaintiffs' counsel has cited Bain v. Superior Court, 714 P.2d 824 (Ariz. 1986), in support of the argument that ex parte communications should be banned. In Bain, defendants attempted to access records related to previous marital counseling while litigating a claim related to back surgery, and the court's denial of their attempt pertained mostly to the irrelevancy of the counseling records. Unlike Bain, no one in this case argues that the information to be provided by the treating physicians is irrelevant. In fact, the diagnosis given by the current treating doctors, and information they may have about damages, are highly relevant. Thus, Bain's decision to limit the subject matter of communication with treating practitioners is easily distinguishable on the facts and is not persuasive here.