Ex Parte Doctor Conferences Cannot Suggest, Direct or Instruct What Treatment or Care to Recommend

A large part of defense strategy in Florida workers’ compensation claims hinges on the ability to conduct ex parte conferences with authorized treating providers regarding their opinions of claimants’ work-related medical treatment, as permitted by statute 440.13(4)(c). However, a recent evidentiary order seeks to limit the substantive content of such conferences.

The Judge of Compensation Claims in Bien-Aime v. Correct Care Recovery/ESIS, OJCC 17-022305DAL, Ft. Lauderdale District, Order January 2, 2019, granted the claimant’s emergency motion to prohibit/limit the employer’s ex parte communication with the transfer of care physician. The judge specifically noted in his evidentiary order that he was confronted with the task of determining whether the employer/servicing agent had conducted an impermissible ex parte “mini-trial” or had deliberately undermined the doctor-patient relationship, thereby abusing its statutory right to conduct such conferences pursuant to § 440.13(4)(c).

Florida Statute § 440.13(4)(c) states that the policy for the administration of the workers’ compensation system shall include reasonable access to medical information by all parties to facilitate the self-executing features of the law. The statute requires that health care providers furnish medical records to and to discuss the claimant’s medical condition relating to the workplace injury with the employer upon request. Otherwise, the provider can be subject to penalties by the department.

In Bien-Aime, the employer conferenced with the claimant’s authorized treating provider regarding his work injuries to his foot and ankle. The conference was held after the provider referred the claimant to a second foot and ankle specialist, who concluded he had no objective findings to explain the claimant’s subjective complaints and had nothing further to offer. After conferencing with the employer’s representative and the nurse case manager, the provider signed a conference summary letter, prepared by the employer, indicating the claimant did not require a referral to any other doctor or specialist. At the treating provider’s deposition, he explained that he rescinded his referral for a second specialist because he thought a referral was necessary in order for the claimant to exhaust his one-time change in provider. But after conferencing with the employer, he realized that it was not.

The Judge of Compensation Claims held that the attorney for the employer/carrier may discuss the claimant’s medical condition with the claimant’s provider on an ex parte basis and obtain medical records. However, the judge ruled the employer or its representative shall not suggest to or instruct the doctor as to what treatment he or she may provide or recommend. According to the judge, if the employer wishes to challenge a doctor’s treatment or recommendations, it must do so at a conference where the claimant or his legal representative has the opportunity to be present. Otherwise, a deliberate undermining of the doctor-patient relationship would occur.

In support of his opinion, the judge cited to the First District Court of Appeal’s opinion in Holiday Inn v. Re, 643 So. 2d 13, 15 (Fla. 1^st DCA 1994)(finding that showing surveillance videotapes to claimant’s authorized treating physician did not appear to be authorized by the limited exception to the confidentially requirements provided in § 440.13 in effect at the time), where the court held that the Legislature did not contemplate ex parte “mini-trials” before the health care provider nor any deliberate undermining of the doctor-patient relationship in drafting § 440.13. However, after the Holiday Inn decision, the Legislature amended § 440.13 to specifically allow ex parte discussions and conferences with the treating providers and the claimant or the employer/carrier’s representatives.

Interestingly, in his opinion, the judge specifically pointed to recent case law clarifying the legislative intent after the statutory change, indicating that claimants no longer enjoy the right to be present at such conferences. See, S & A Plumbing v. Kimes, 756 So. 2d 1037 (Fla. 1^st DCA 2000). Further, the judge uses the “mini-trial” phrase, used by the First District Court of Appeal in Holiday Inn v. Re, to interpret the specific statutory language in effect at that time in order to support his ruling in this matter, despite the fact that Holiday Inn has been overruled by statute. It appears the judge’s opinion is inconsistent, since he uses phraseology employed in interpreting an old version of the statute and includes citations to case law regarding legislative intent directly conflicting with his ruling requiring claimants to be present in certain instances. As such, it is unclear how the judge’s opinion in this matter would hold up if challenged on appeal.

Although this is only a Judge of Compensation Claims evidentiary order, it sets forth a specific ruling limiting the content of ex parte doctor conferences, and it could be used by claimants in other districts in similar motions as persuasive case law. Further, be prepared to provide a specific independent basis for any provider’s new/change in opinion if faced with a similar evidentiary motion limiting conferences.

*Linda is a shareholder in our Jacksonville, Florida office. She can be reached at 904.358.4224 or lwfarrell@mdwcg.com.

^{Defense Digest, Vol. 25, No. 1, March 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}