Shoop et al v. United States of America et al

Filing 30

ORDER re ex parte communications with physicians currently treating Plaintiff. Signed by Judge David G Campbell on 6/6/2013. (NVO)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Vernie Shoop, et al., Plaintiffs, 10 11 No. CV-13-0096-PHX-DGC ORDER v. 12 United States of America, et al., 13 Defendants. 14 In both the case management conference on May 1, 2013, and the joint case 15 management report, Plaintiffs’ counsel asked that defense counsel be precluded from all 16 ex parte communications with the physicians currently treating Plaintiff Vernie Shoop. 17 The Court took the matter under advisement. For the reasons that follow, the Court 18 concludes that defense counsel is not barred from engaging in ex parte communications 19 with Plaintiff Vernie Shoop’s treating physicians who are employed by Defendant United 20 States. 21 A hospital has a right to information gathered by employees acting in the scope of 22 their employment. Phoenix Children's Hosp., Inc. v. Grant, 265 P.3d 417 (Ariz. Ct. App. 23 2011). In Grant, the plaintiffs alleged negligence against a nurse, but continued receiving 24 medical treatment from other employees of the same hospital. Id. The court allowed 25 defense counsel access to the current treating practitioners, concluding that “a hospital's 26 right to discuss a plaintiff/patient with its own employees exists because the employment 27 relationship exists…. 28 physician-patient privilege to bar communications that are otherwise allowed.” Id. at We see no reason why the filing of a lawsuit expands the 1 421. While Grant concerned a private employer, the fundamental principle remains. The 2 physicians in this case act as agents for their employer, the United States, and information 3 acquired in the scope of their employment is imputed to the United States under Arizona 4 law and may be accessed by the United States and its counsel during litigation. Id. As 5 Grant makes clear, however, the information accessed through ex parte communications 6 must be relevant to the defense of this case. Id. at 422. 7 Plaintiffs’ counsel has cited Bain v. Superior Court, 714 P.2d 824 (Ariz. 1986), in 8 support of the argument that ex parte communications should be banned. In Bain, 9 defendants attempted to access records related to previous marital counseling while 10 litigating a claim related to back surgery, and the court’s denial of their attempt pertained 11 mostly to the irrelevancy of the counseling records. Unlike Bain, no one in this case 12 argues that the information to be provided by the treating physicians is irrelevant. In fact, 13 the diagnosis given by the current treating doctors, and information they may have about 14 damages, are highly relevant. 15 communication with treating practitioners is easily distinguishable on the facts and is not 16 persuasive here.1 17 Thus, Bain’s decision to limit the subject matter of Dated this 6th day of June, 2013. 18 19 20 21 22 23 24 25 26 27 28 1 The Court bases this decision on Arizona law because both parties have cited Arizona cases in support of their arguments. -2-

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