Could a North Carolina lawyer for the employer privately contact the injured worker's treating physician, without the worker's or counsel's consent, in a workers' compensation case?

Plain-English summary

A worker was injured in a work-related accident and was represented by counsel in his workers' compensation claim; the employer was separately represented. The question was whether the employer's lawyer could contact the worker's treating physician privately, without the consent of the worker or the worker's lawyer, to discuss the worker's medical treatment.

The opinion concluded the answer was no. It rested on North Carolina case law rather than a numbered Rule of Professional Conduct, citing Salaam v. N.C. Department of Transportation, which applied the holding of Crist v. Moffat to adversarial proceedings before the Industrial Commission and recognized the public-policy interest in protecting patient privacy given the adequacy of formal discovery procedures. The practical effect, at the time, was that the employer's counsel had to obtain medical information through formal discovery rather than through private ex parte contact with the treating physician.

Currency note

The State Bar reports that this opinion has been overruled by N.C. Gen. Stat. § 97-25.6 (2012) (reasonable access to medical information), which now governs an employer's access to an injured worker's medical information. This opinion was also issued in 1997, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct. Treat this page as historical context only, not current guidance; the statutory framework, not this opinion, controls private contact with and access to a workers' compensation claimant's treating physician. Verify against the current statute and rules before relying on anything stated here.

Common questions

Q: Could an employer's lawyer privately contact an injured worker's treating physician in a comp case?

A: The opinion concluded no; the lawyer could not contact the treating physician privately, without consent, and had to use formal discovery, citing Salaam and Crist v. Moffat.

Q: Is RPC 224 still good guidance?

A: No. The State Bar reports it has been overruled by N.C. Gen. Stat. § 97-25.6 (2012), which now governs reasonable access to an injured worker's medical information.

Q: What rule did the opinion rely on?

A: The opinion did not turn on a numbered Rule of Professional Conduct; it relied on North Carolina case law and the public-policy interest in patient privacy.

Background and rules framework

The opinion did not interpret a numbered Rule of Professional Conduct. It applied North Carolina case law, Crist v. Moffat, 326 N.C. 326, 389 S.E.2d 41 (1990), and Salaam v. N.C. Department of Transportation, 122 N.C. App. 83, 468 S.E.2d 536 (1996), recognizing a public-policy interest in patient privacy and the adequacy of formal discovery, to a defense lawyer's proposed ex parte contact with an opposing party's treating physician. The conclusion has since been superseded by statute (N.C. Gen. Stat. § 97-25.6).

Citations and references

Cases:

• Crist v. Moffat, 326 N.C. 326, 389 S.E.2d 41 (1990), barring ex parte contact with an opposing party's treating physician
• Salaam v. N.C. Department of Transportation, 122 N.C. App. 83, 468 S.E.2d 536 (1996), disc. rev. improvidently allowed, 345 N.C. 494 (1997), applying Crist to Industrial Commission proceedings

Statutes:

• N.C. Gen. Stat. § 97-25.6 (2012) (reasonable access to medical information; overrules this opinion)

See also

• NC State Bar Op. 99 FEO 2: Obtaining Medical Records
• NC State Bar Op. 2010 FEO 2: Obtaining Medical Records From Out of State Health Care Providers

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-224/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Editor's Note: This opinion was originally published as RPC 224 (Third Revision). This opinion is overruled by N.C. Gen. Stat. S 97-25.6 (2012) (Reasonable access to medical information).

Inquiry #1:

Employee was injured in a work-related accident. Attorney A represents Employee in his workers' compensation claim. Attorney X represents the employer. Employee's treating physician is Dr. Care. May Attorney X contact Dr. Care privately, without the consent of Employee or Attorney A, to discuss Employee's medical treatment?

Opinion #1:

No. See Salaam v. N.C. Department of Transportation, 122 N.C. 83, 468 S.E.2d 536 (1996), disc. rev. improvidently allowed, 345 N.C. 494, S.E.2d (1997) (applying the holding in Crist v. Moffat, 326 N.C. 326, 389 S.E.2d 41 (1990), to adversarial proceedings before the Industrial Commission and recognizing the public policy interest in protecting patient privacy in light of the adequacy of formal discovery procedures).