Shoop et al v. United States of America et al
ORDER re ex parte communications with physicians currently treating Plaintiff. Signed by Judge David G Campbell on 6/6/2013. (NVO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Vernie Shoop, et al.,
United States of America, et al.,
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
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
physician-patient privilege to bar communications that are otherwise allowed.” Id. at
We see no reason why the filing of a lawsuit expands the
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.
communication with treating practitioners is easily distinguishable on the facts and is not
Thus, Bain’s decision to limit the subject matter of
Dated this 6th day of June, 2013.
The Court bases this decision on Arizona law because both parties have cited
Arizona cases in support of their arguments.
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