Restaurant permitted to communicate <i>ex parte</i> with treating physician

In Georgia, an employer can seek relevant protected health information informally by communicating orally with a worker's treating physician.

Case name: Arby's Restaurant Group, Inc. et al. v. McRae, No. S12G0714 (Ga. 11/05/12).

Ruling: The Georgia Supreme Court held that an employer was allowed to seek ex parte communications with an injured worker's treating physician.

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What it means: In Georgia, an employer can seek relevant protected health information informally by communicating orally with a worker's treating physician.

Summary: A worker for a restaurant suffered a work-related injury and filed a claim for workers' compensation benefits. The restaurant paid income benefits. The worker signed a form authorizing the release of medical information. Her treating physician concluded that she reached maximum medical improvement and incurred a permanent partial disability. The restaurant's attorney sought to arrange an ex parte conference with the physician, but the physician refused to meet without the worker or her attorney present. The workers' compensation board ordered her to sign a medical release or remove her hearing request from the calendar. The worker refused to sign the release. The Georgia Supreme Court held that ex parte communications between a treating physician and an employer's attorney is not prohibited, and the board acted within its discretion.

The court explained that an employer in a workers' compensation case is entitled to seek from any physician who examined, treated, or tested the worker "all information and records related to the examination, treatment, testing, or consultation" about the worker. The worker is deemed to have waived any privilege or confidentiality. The court concluded that "information" about the injured worker includes oral communications between a treating physician and an employer.

The court acknowledged the risk that the communication between a physician and an employer could exceed the bounds of the privilege waived. The court explained that a complete prohibition on all ex parte communication would be inconsistent with the policy favoring full disclosure in workers' compensation cases and the goal of providing equal access to relevant information to not delay the payment of benefits to an injured worker.

The court pointed out that the law does not demand that physicians agree to be interviewed ex parte. They can agree to be interviewed on the condition that their attorney or the worker or her attorney is present, can request that the interview be recorded, and can share the substance of the interview with the worker and her attorney.

Read more at the WorkersComp Forum homepage.

January 28, 2013

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