Is it ethical for defense counsel to contact a plaintiff's treating physician in a typical plaintiff's personal injury suit?
In Texas, the answer depends, and it depends in large measure on whether the underlying lawsuit is in state or federal court. Federal courts follow "national standards" of ethics, see, e.g., In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992), while Texas state courts generally apply a very different set of rules.
While one Texas state court has held that it is proper for defense counsel to meet with a treating physician without the plaintiff¹s authorization, Hogue v. Kroger Store No. 107, 875 S.W.2d 477 (Tex. App.--Houston [1st Dist.] 1994 writ denied), both the Southern and Eastern Districts of Texas hold that a defendant may not engage in ex parte contacts with the plaintiff¹s treating physician without the plaintiff¹s authorization. See Perkins v. United States, 877 F. Supp. 330, 332 (E.D. Tex. 1995); Horner v. Rowen Companies, Inc., 153 F.R.D. 597 (S.D. Tex. 1994).
The federal courts essentially reasoned that, although a personal injury plaintiff puts her "condition" at issue and so waive any physician-patient privilege, the scope of that waiver is not to be decided by the defense counsel during an ex parte interview. See also, Cua v. Morrison, 636 N.E.2d 1248 (Ind. 1994), adopting Cua v. Morrison, 626 N.E.2d 581 (Ind. App. 1993). Texas state courts appear to broadly reason that, since the condition is at issue, there is blanket waiver of the privilege. However, the state courts do not appear to have as fully analyzed the issue as has other authority.