During Nov. 2017, multidistrict litigation targeting the Physiomesh manufactured by Ethicon focused on who’d be permitted to get ex parte contact with the physicians treating the plaintiffs in the case.
In most multidistrict litigation cases pertaining to medical devices or drugs, ex parte contact between the defense counsel and the doctors treating plaintiffs is prohibited.
This is designed to safeguard doctor-patient confidentiality, prevent the limitless release of confidential information, eliminate possible conflicts of interest between physicians and defense lawyers, and to prevent physicians from being used as expert witnesses against their own patients.
Plaintiffs have cited the HIPAA Privacy Rule as to why ex parte contact between their physicians and defense lawyers should be prohibited.
The question of whether or not to allow ex parte contact between the parties is actually fairly split amongst the jurisdictions. Those endorsing ex parte contact contend that plaintiffs forfeit doctor-patient confidentiality the moment the file a lawsuit over health conditions. Defense lawyers want to speak with physicians in order to use them as expert witnesses in the trial.
In lawsuits involving medical devices or drugs, jurors are more likely to trust the testimony of the plaintiffs’ treating physicians than the expert witnesses paid by the defense. The plaintiffs’ doctors are typically neutral witness under these circumstances.
In addition, the treatment decisions and impressions they provide were made before the lawsuit was filed. The plaintiffs’ physicians are not paid for getting paid to testify.
If the defense can use the treating physician as an expert witness, they stand a better chance of convincing the jury at trial. Most consider this to be a conflict of if the physician is also being used as a neutral witness by the plaintiff.
Many of the plaintiffs in the Physiomesh multidistrict litigation focused on shoring up their argument by relying on the cases from the jurisdictions prohibiting ex parte.
Judges in the past have considered contact between the defense and treating physician has highly prejudicial to the plaintiff and prone to creating conflicts of interest. Judges have also decreed that the defense need not rely on the treating physician, as there plenty of other reputable physicians available who can provide their expertise.
In contrast, the defense relies on case law used in a jurisdiction that does allow ex parte. Defense claims cite the obvious inequity between the treating testimony and other expert witness testimony they could provide.
They contend that such one-sided, unfettered access allows the plaintiffs the opportunity bias the treating physician with a range of documents that could compel them to provide a more favorable testimony.
Ethicon’s defense also cited the learned intermediary doctrine, noting that manufacturers are only required to inform physicians about the risks and benefits of the product. It then becomes the treating physician’s responsibility to inform the patient.
The American Bar Association supports the doctrine claiming that manufacturers’ duty to warn of medical risks flows through the treating physicians, and not directly to consumers.