Can a defense lawyer in a medical-malpractice wrongful-death case contact the pathologist who performed the decedent's autopsy, without the consent of the estate's lawyer?

Plain-English summary

In a wrongful-death medical-malpractice case, a pathologist had performed an autopsy on the decedent immediately after death, on the next of kin's authorization, before the estate retained counsel and before suit was filed. The lawyer for the defendant doctor wanted to contact the pathologist directly, without notifying or getting permission from the estate's lawyer or personal representative, to discuss the pathologist's findings and conclusions. The inquiry asked whether that ex parte contact was permitted, and whether the answer changed if the medical examiner, rather than the next of kin, had ordered the autopsy.

The opinion concluded the contact is permitted, unless otherwise prohibited by statute or case law. It explained that the public policy protecting a patient's privacy in his medical treatment supports barring communications with a plaintiff's nonparty treating physician outside the recognized methods of discovery, citing Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), and RPC 162. That privacy interest, however, is not implicated by an autopsy performed after death by a physician who was not providing the decedent medical treatment, citing Prince v. Duke University, 326 N.C. 787 (1990). The opinion answered the second inquiry the same way: the result does not change when the medical examiner orders the autopsy.

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 Treat this page as historical context, not current guidance.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 a defense lawyer talk to the autopsy pathologist without the estate's consent?

A: Yes, unless a statute or case law bars it. The opinion concluded the privacy rule that limits ex parte contact with a plaintiff's nonparty treating physician does not apply to a pathologist who performed an autopsy after death.

Q: Why does the treating-physician privacy rule not apply here?

A: Because there was no living treatment. The opinion reasoned, citing Prince v. Duke University, that the privacy interest in a patient's medical treatment is not relevant to an autopsy performed after death by a physician who did not treat the decedent.

Q: Does it matter whether the next of kin or the medical examiner ordered the autopsy?

A: No. The opinion answered the second inquiry by reference to the first, holding the result is the same when the medical examiner orders the autopsy.

Background and rules framework

The opinion did not turn on a numbered Rule of Professional Conduct. It rested on North Carolina case law governing ex parte contact with a plaintiff's nonparty physician, distinguishing Crist v. Moffatt, which limited such contact for a living patient's treating physician, from Prince v. Duke University, which addressed an autopsy performed after death. The opinion treated the State Bar's earlier opinion RPC 162 as consistent with that framework.

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
• Prince v. Duke University, 326 N.C. 787 (N.C. 1990), autopsy performed after death

Other opinions cited:

• North Carolina RPC 162 (contact with a plaintiff's nonparty treating physician)

See also

• NC Ethics Op. RPC 180: ex parte contact with a plaintiff's treating physician
• NC Ethics Op. RPC 193: communicating with an uninsured or underinsured defendant
• NC Ethics Op. RPC 219: public-records request to a represented adverse party

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-184/

Original opinion text

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

Inquiry #1:

Attorney A represents Decedent's Estate in a wrongful death case arising out of medical malpractice. An autopsy was performed on the decedent by a pathologist immediately following the decedent's death upon the authorization of the decedent's next of kin. The autopsy was performed prior to the retention of Attorney A to represent the Decedent's Estate and prior to the filing of the lawsuit.

Attorney C represents the defendant doctor and his practice group. Attorney C would like to contact the pathologist who performed the autopsy without informing or obtaining the permission of Attorney A or the personal representative of Decedent's Estate in order to discuss the pathologist's findings and conclusions regarding the decedent's death. May a lawyer contact the pathologist who performed an autopsy on a decedent whose medical treatment while living is the subject matter of a wrongful death case without the consent of the lawyer for the decedent's estate or the personal representative of the estate?

Opinion #1:

Yes, unless otherwise prohibited by statute or case law. The public policy of protecting a patient's right to privacy regarding his or her medical treatment is furthered by the prohibition on communications with a plaintiff's nonparty treating physician if the communications are by means other than the recognized methods of discovery in a civil lawsuit. See Crist v. Moffatt, 326 N.C. 326, 389 S.E. 2d 41 (1990) and RPC 162. However, the public policy interest in protecting a patient's right to privacy about his or her medical treatment is not relevant to an autopsy performed after the patient's death by a physician who is not providing the decedent with medical treatment. See Prince v. Duke University, 326 N.C. 787 (1990).

Inquiry #2:

Does the answer to this question change if the decedent's autopsy was ordered by the medical examiner rather than her next of kin?

Opinion #2:

No. See Opinion #1 above.