Case Lesson: Ex Parte Communications in Workers’ Compensation

Frank Ferreri

Stuart, FL (WorkersCompensation.com) – Regular readers of the What Do You Think feature will remember that in Jones v. University of Mississippi Medical Center, No. 2020-WC-00412-COA (Miss. Ct. App. 01/05/21), a respiratory therapist for a medical center tried to convince a court that her injuries occurred in an at-work incident and not from a car crash.

Along the way, another issue the therapist’s case raised was what to do about ex parte communications in a workers’ compensation case. Ex parte communications occur when one party – or counsel that represents that party — in a case contacts the other party without the other party’s attorney being present.

In the Jones case, although the therapist was unsuccessful on her charge that her employer’s attorneys engaged in improper ex parte contact, a few takeaways from the case on the issue stand out.

Patient-physician Privilege

Generally, in Mississippi, a patient-physician privilege exists in the workers’ compensation context.

However, the privilege is removed for medical and surgical treatment under some circumstances. In the Jones case, a questionnaire that the medical center’s attorney sent to the therapist’s doctor sought clarification of the therapist’s work restrictions and reasonable and necessary medical treatment. Thus, the privilege didn’t apply.

Attorney Contact with Employee’s doctor

Finding that the privilege wasn’t in play didn’t completely resolve the issue of ex parte contact. So, the court explained that, in the workers’ compensation context, a two-part test is used to determine whether communication between an employee’s doctor and an employer’s attorney is impermissible.

Under case law, this kind of communication is acceptable when:

  1. Notice is given to the employee for communication to occur between the treating physician and the employer’s attorney.
  2. The employee allows the communication.

If both conditions are met, the communication is acceptable, and the court may consider it in evidence.

The medical center’s communication was appropriate because its attorney copied the therapist’s attorney on correspondence to the doctor. Additionally, the therapist’s attorney received a copy of the doctor’s report, and there was no indication that any further questioning occurred.

The Lesson

The Jones court explained that the therapist, through her attorney, “acquiesced” to the communication at issue when the attorney did not object to the communication or prohibit the medical center’s attorney from supplying the doctor with the questionnaire.

Although the therapist charged that she didn’t receive notice of the correspondence, legally, it didn’t matter.

“Notice to Jones’s lawyer when he was copied on the correspondence … was notice to Jones,” the court explained.

That court explained that under Mississippi Rules of Civil Procedure, if a party is represented by counsel, “service shall be made upon such attorney.” Thus, without objection from the therapist’s attorney, the communication was acceptable, and the court could consider it.

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