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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Vernie Shoop, et al.,
Plaintiffs,

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No. CV-13-0096-PHX-DGC
ORDER

v.

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United States of America, et al.,

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Defendants.

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In both the case management conference on May 1, 2013, and the joint case

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management report, Plaintiffs’ counsel asked that defense counsel be precluded from all

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ex parte communications with the physicians currently treating Plaintiff Vernie Shoop.

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The Court took the matter under advisement. For the reasons that follow, the Court

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concludes that defense counsel is not barred from engaging in ex parte communications

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with Plaintiff Vernie Shoop’s treating physicians who are employed by Defendant United

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States.

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A hospital has a right to information gathered by employees acting in the scope of

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their employment. Phoenix Children's Hosp., Inc. v. Grant, 265 P.3d 417 (Ariz. Ct. App.

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2011). In Grant, the plaintiffs alleged negligence against a nurse, but continued receiving

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medical treatment from other employees of the same hospital. Id. The court allowed

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defense counsel access to the current treating practitioners, concluding that “a hospital's

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right to discuss a plaintiff/patient with its own employees exists because the employment

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relationship exists….

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physician-patient privilege to bar communications that are otherwise allowed.” Id. at

We see no reason why the filing of a lawsuit expands the

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421. While Grant concerned a private employer, the fundamental principle remains. The

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physicians in this case act as agents for their employer, the United States, and information

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acquired in the scope of their employment is imputed to the United States under Arizona

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law and may be accessed by the United States and its counsel during litigation. Id. As

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Grant makes clear, however, the information accessed through ex parte communications

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must be relevant to the defense of this case. Id. at 422.

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Plaintiffs’ counsel has cited Bain v. Superior Court, 714 P.2d 824 (Ariz. 1986), in

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support of the argument that ex parte communications should be banned. In Bain,

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defendants attempted to access records related to previous marital counseling while

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litigating a claim related to back surgery, and the court’s denial of their attempt pertained

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mostly to the irrelevancy of the counseling records. Unlike Bain, no one in this case

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argues that the information to be provided by the treating physicians is irrelevant. In fact,

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the diagnosis given by the current treating doctors, and information they may have about

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damages, are highly relevant.

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communication with treating practitioners is easily distinguishable on the facts and is not

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persuasive here.1

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Thus, Bain’s decision to limit the subject matter of

Dated this 6th day of June, 2013.

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The Court bases this decision on Arizona law because both parties have cited
Arizona cases in support of their arguments.
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