Doctors and Lawyers: Can We Talk?

James M. McCauley, Ethics Counsel

Virginia State Bar

Lawyers and physicians sometimes end up working against each other instead of cooperating with each other for the benefit of the client/patient. Lawyers who represent clients with personal injury or malpractice claims need the support of the client's treating physician in order to provide the best possible representation. The friction between the medical and legal professions continues despite prior efforts to foster improved service to the client/patient. Twelve years ago, the Medical Society of Virginia and the Virginia State Bar promulgated some helpful guidelines designed to improve cooperation between doctors and lawyers. Principles of Cooperation for Physicians and Attorneys in the Commonwealth of Virginia (2d Ed. 1985). However, staff attorneys in the Legal Ethics section of our Professional Regulation Department, continue to receive telephone calls from doctors and lawyers regarding misunderstandings over matters including fees, medical records, court and deposition appearances, ex parte communications with opposing counsel, medical liens, subpoenas, etc. In short, the relation between a lawyer and a physician should be based upon mutual courtesy and understanding.

Some of these principles of cooperation are in fact ethical or legal precepts well worth repeating:

1. Generally, no attorney should request, and no physician whould furnish to third party, any information concerning the history, physical condition, diagnosis, or prognonsis of a patient except at the request of or with the consent of the patient. Va. Code § 8.01-399 (D) (Repl. Vol. 1996). Prior Legal Ethics Opinions 1042, 1158 and 1235 permitting ex parte contacts with a party's treating physician are overruled by this statute.

2. Upon the filing of a lawsuit in which the physical or mental condition of the patient is at issue, patient information communicated to or otherwise learned by a treating physician may be disclosed but only through formal discovery under Part Four of the Rules of the Supreme Court of Virginia or as permitted by order of the court. Va. Code § 8.01-399 (B) (Repl. Vol. 1996).

3. Except at the request of or with the consent of the patient, no treating physician may be compelled to testify in any civil action as to any information acquired in treating a patient in a professional capacity. Va. Code § 8.01-399 (A).

4. Generally, a physician who undertakes to treat or evaluate a patient has a responsibility to be available, if necessary, to give testimony in any legal proceedings regarding the patient's condition, treatment, diagnosis, prognosis or other relevant medical matters. As a general fact witness, as opposed to an expert witness, the treating physician is not entitled by law to be compensated for time or expenses incurred in giving the testimony. However, the Code of Professional Responsibility does permit a lawyer to acquiesce in the payment of expenses reasonably incurred by a fact witness in attending or testifying at trial. DR 7-108 (C). As a practical matter, a lawyer should expect a physician to demand compensation if the physician must set aside a day or a part of a day to be in court rather than at the office treating patients.

5. A lawyer may retain the services of a physician to serve as an expert, however, it is improper to compensate the expert (or any witness) based upon the outcome of the litigation. DR 7-108 (C); EC 7-25. Therefore, a lawyer may not pay or agree to pay any witness a contingent fee.

6. A lawyer may advance or guarantee the expenses of litigation, including the expenses of medical examinations and the cost of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses. DR 5-103 (B); Legal Ethics Opinion 297.

7. An attorney is permitted by law to obtain his or her client's medical records by subpoena duces tecum in those rare instances where a physician refuses to honor a written request for a copy of the client's medical records. Va. Code § 8.01-413 (C). A physician must charge a reasonable charge for the cost of making copies of the records, however, a physician is entitled to also charge a reasonable fee for the preparation of detailed reports intended for use by the attorney in the representation of the patient.

8. An attorney has both an ethical and legal obligation to honor a health care provider's medical lien for medical treatment rendered to the client. DR 9-102 (B) (4); Va. Code § 8.01-66.2, et seq. A hospital has a lien up to $2,000 and a physician up to $500. Id. An attorney may be disciplined for failure to honor a doctor's lien for medical services rendered to a client if the amount of the lien is not in dispute. Thus, in disbursing any settlement or recovery on behalf of a client, an attorney has an obligation to see that undisputed charges of an attending physician or treating hospital are paid, at least to the extent of the statutory lien. Technically, an attorney does not have an ethical duty to disburse payment to a physician out of settlement beyond the statutory lien. Legal Ethics Opinion 1413. However, if the amount of the medical bill is not disputed by the client, but the client refuses to authorize payment to the medical provider, the lawyer should consider holding those funds in escrow or interpleading them into the court. The lawyer's failure to protect the medical provider's interests under such circumstances will likely lead to a lawsuit and/or a Bar complaint against the lawyer.

9. Attorneys and physicians should discuss and agree on a reasonable manner of compensation in advance of any conference, deposition or court appearance. Physicians often provide a fee schedule disclosing their charges for reports, giving a deposition, court appearances, etc.

10. It is wise to seek the court's permission to permit a treating physician or medical expert to remain "on call" rather than requiring the physician or expert to sit around the courthouse all day. Since the physician may be charging the client for his or her unproductive time waiting to be called as a witness, it is important to have some idea of when the physician may be expected to testify. Similarly, it is important to promptly inform the physician of any cancellations, delays or continuances. Physicians informed well enough in advance to profitably reschedule office appointments have an obligation to minimize unproductive time.

11. May an attorney conduct an ex parte interview with the opposing party's medical expert, i.e., a physician who has not seen nor treated the party? Since Va. Code § 8.01-399 appears to apply only to treating physicians, it does not prohibit an attorney from communicating with an adverse party's medical expert who has not treated or personally evaluated that party. The Standing Committee on Legal Ethics has concluded that it is not per se improper for an attorney to communicate with an adversary's medical expert. Legal Ethics Opinion 1235. But the attorney must be mindful of Rule 4:1(b)(4) of the Rules of the Supreme Court which provides that the discovery of trial experts shall be by interrogatory only unless the court authorizes discovery by other means.

12. While representing a client in pending or contemplated litigation, a lawyer may not loan money to a client for payment of the client's living expenses. DR 5-103 (B); Shea v. Virginia State Bar, 236 Va. 442, 374 S.E.2d 63 (1988) (lawyer suspended for advancing funds to clients for payment of living expenses). However, a lawyer may advance the expenses of litigation, including expenses for medical examination and medical reports provided the client remains ultimately liable for such expenses. DR 5-103(B); LEO 297 (not improper to advance fees charged by medical clinic for release of client's pertinent medical records or reports, provided the client remains ultimately liable for such expenses).

These appear to be some of the important issues that may arise between doctors and lawyers. Both professions need to be mindful of their mutual obligations to the client or patient whom they serve and need to cooperate to discharge those obligations in a professional manner.