Defendants in Minnesota personal injury cases do not have the right to meet with a plaintiff’s treating physician. Most HIPAA releases signed by Minnesota personal injury attorneys will allow for the release of medical records from a treating provider but expressly preclude in-person discussions between a defendant’s representative and the patient’s treating doctor. Minn. Stat. § 595.02 subd. 1; Wenninger v. Muesing, 240 N.W.2d 333, 336 (Minn. 1976). But this is an example where Minnesota medical malpractice cases have different procedures from Minnesota personal injury lawsuits.
Attorneys working on medical malpractice cases in Minnesota should be aware that there is a unique procedure under Minnesota law allowing a defendant to set up “informal conferences” with treating care providers. Minn. Stat. § 595.02 subd. 5.
The statute allows a medical malpractice defense lawyer to mail written notice to the parties with at least 15 days notice that an informal conference will take place with the plaintiff’s treating doctor. All parties may attend the informal meeting, but the plaintiff’s attorney or representative must have the opportunity to be present. The plaintiff must provide “appropriate authorizations” permitting the discussion upon request from another party.
If the treating doctor refuses the informal conference, the requesting malpractice defendant is then allowed to take a deposition without a court order.
The informality of these conferences is a strange phenomenon in that anything might be discussed and there is no referee to keep things in bounds. Also, nothing is recorded and there is no true ability to impeach a treating doctor on a change of heart that might occur on the witness stand.
While I have this topic categorized under “Discovery Provisions,” the Minnesota Supreme Court has held that these informal conferences are actually not “discovery” that would be subject to the court’s rules governing discovery, including a discovery cutoff dates within a scheduling order. Blohm v. Minneapolis Urological Surgeons, P.A., 449 N.W.2d 168 (Minn. 1989).
In Howard v. Svoboda, 890 N.W.2d 111 (Minn. 2017), the plaintiff successfully argued to the trial court that the “appropriate authorization” required under the informal conference could be limited such that the treating doctor could not offer opinions outside his own care and treatment of the plaintiff. The trial judge prevented the defendants from asking for information and opinions relating to the doctor’s opinions as to the merits of the case – standard of care and causation opinions. The doctor’s opinions came out in the conference anyway and things escalated from there. While the court of appeals ultimately agreed with the defendants and ruled that any information within an informal conference is in bounds, including opinions, Howard v. Svoboda, 877 N.W.2d 562, 568 (Minn.App. 2016), the decision was vacated by the Minnesota Supreme Court on procedural grounds. 890 N.W.2d 111 (Minn. 2017).