Can defense counsel in a personal-injury case contact the plaintiff's treating physician, even just to read handwriting in records produced in discovery, without the plaintiff's consent?

Plain-English summary

Defense counsel in a personal-injury case received the plaintiff's complete medical records through discovery, and some attending physicians' records appeared favorable to the defense. The inquiry asked, in five parts, whether the lawyer could contact the plaintiff's physicians without the plaintiff's consent: to decipher handwriting and medical codes in the records, to discuss the physicians' generalized opinions apart from the plaintiff's condition, to discuss those matters after the physician was subpoenaed as a defense witness, to arrange the physician's trial appearance, and to convey the questions the lawyer expected to ask at trial.

The opinion concluded that communications with the plaintiff's nonparty treating physician concerning any aspect of the physician's treatment of the plaintiff, or the substance of the physician's testimony at trial, are unethical as against public policy unless the opposing party consents, citing Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990). That answer governed the first three inquiries, including reading handwriting, discussing generalized opinions, and contact after the physician was subpoenaed. The opinion allowed two narrow exceptions: the lawyer may communicate with the physician to arrange his appearance at trial as a witness, and may communicate the questions the lawyer expects to pose at trial, provided that communication is in writing and seeks no privileged information or responses. The opinion noted it does not address communications with treating physicians in workers' compensation cases, citing G.S. §97-27, and expressed no opinion on limits there.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can defense counsel call a plaintiff's treating physician just to read illegible records?

A: No. The opinion concluded that contacting the plaintiff's nonparty treating physician about any aspect of the treatment, including to decipher handwriting and codes, is unethical without the plaintiff's consent, citing Crist v. Moffatt.

Q: Does subpoenaing the physician as a defense witness change the answer?

A: No. The opinion applied the same answer to contact after the physician was subpoenaed as a defense witness.

Q: What contact with the physician is allowed?

A: Two things. The opinion permitted the lawyer to communicate with the physician to arrange his trial appearance, and to convey expected trial questions in writing, so long as no privileged information or responses are sought.

Q: Does this cover workers' compensation cases?

A: No. The opinion expressly stated it does not address communications with treating physicians in workers' compensation cases, citing G.S. §97-27.

Background and rules framework

The opinion did not turn on a numbered Rule of Professional Conduct. It rested on North Carolina case law and public policy barring ex parte contact with a plaintiff's nonparty treating physician absent the patient's consent, citing Crist v. Moffatt, while carving out arranging the witness's appearance and conveying anticipated questions in writing.

Citations and references

Cases:

• Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (N.C. 1990), ex parte contact with a plaintiff's nonparty treating physician

Statutes:

• N.C. Gen. Stat. §97-27 (workers' compensation medical examinations; expressly not addressed)

See also

• NC Ethics Op. RPC 180: stopping a treating physician who volunteers information
• NC Ethics Op. RPC 184: contacting the pathologist who performed a decedent's autopsy

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-162/

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 162 (Third Revision).

Inquiry #1:

Attorney A is defense counsel in a personal injury case. Through discovery, Plaintiff, P, produces complete medical records from her attending physicians. The records of certain of these attending physicians appear to be favorable to the defendant and supportive of defendant's theory of the case. Before the case is set for trial, may Attorney A communicate with Plaintiff's physicians without seeking the consent of Plaintiff or her counsel in order to have the physician decipher his handwriting and medical codes in the records that Attorney A has received as a part of discovery in the civil action?

Opinion #1:

No. Communications with Plaintiff's nonparty treating physician concerning any aspect of the physician's treatment of Plaintiff or the substance of the physician's testimony at trial is unethical as against public policy unless the opposing party consents. See Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990).

Note: This opinion does not address communications with treating physicians in workers' compensation cases and no opinion is thereby expressed as to any ethical or public policy limitations on such communications. See G.S. §97-27.

Inquiry #2:

Under the same circumstances outlined in Inquiry #1, may Attorney A discuss with the physician his generalized opinions without regard to the medical treatment and medical condition of the Plaintiff at issue in the lawsuit?

Opinion #2:

See answer to Inquiry #1.

Inquiry #3:

After the case has been called for trial and the physician in question is subpoenaed as a witness for defense, may Attorney A communicate with physician to discuss the matters set forth in Inquiries #1 and #2 above?

Opinion #3:

See answer to Inquiry #1.

Inquiry #4:

Under the circumstances outlined in Inquiry #3, may Attorney A communicate with physician to arrange for his witness's appearance at the trial?

Opinion #4:

Yes, Attorney A may communicate with the plaintiff's nonparty treating physician in order to arrange the physician's appearance at the trial as a witness.

Inquiry #5:

Under the circumstances mentioned in Inquiry #3, may Attorney A communicate to physician the questions the attorney expects to pose to the physician at trial, so long as neither privileged information or responses to those inquiries are sought from physician?

Opinion #5:

Yes, provided the communication is in writing.