Treating Physician Comments During Informal Conference in Question

The Court of Appeals of Minnesota in Howard v. Svoboda recently held that a treating physician may comment on issues related to the standard of care and causation during a Minn. Stat. § 595.02 informal conference; however, the Supreme Court of Minnesota vacated that decision on procedural grounds.

While the Court of Appeals' reasoning in Howard is persuasive, the Supreme Court's recent order vacating that decision leaves some question as to whether the Court of Appeals' decision on the substantive issues relating to informal conferences is binding.

Here's the background:

In 2014, Appellant Howard filed suit for medical malpractice against a physician, who treated her following a back surgery, a physician's assistant, and the clinic (hereinafter "respondents"), based on allegations that they failed to diagnose and treat post-operative infection that caused patient to suffer a collapse of vertebrae and complete paraplegia.

Respondents requested appellant's authorization for an "informal discussion" with the surgeon, pursuant to Minn. Stat. § 595.02, subd. 5. Although initially authorizing the informal discussion, appellant revoked her authorization after respondents refused to limit questions regarding standard of care or causation. Both parties submitted cross-motions to the district court.

Appellant moved for a temporary injunction and/or a protective order to limit the scope of the informal discussion, and the respondents moved to compel appellant to sign an authorization to allow the informal discussion. The district court directed appellant to sign an authorization; however, the district court also granted a protective order to preclude respondents from using the informal conference under Minn. Stat. § 595.02, subd. 5, to request expert opinions by the surgeon about (a) the standard of care applicable to other medical providers who cared for appellant during periods of time when respondent was not the surgeon's patient; or (b) whether an alleged breach of the standard of care by medical providers other than the surgeon caused injury to respondent.

The respondents appealed the decision, contending that the district court erred by incorrectly interpreting Minn. Stat. § 595.02, subd. 5, and preventing them from asking about "any information or opinion" of the surgeon, including opinions he possessed on the standard of care and causation relating to periods when he was not treating appellant. Appellant contended the district court did not err because "[the plain, unambiguous language of the statute, taken in context, describes only information or opinions the doctor has acquired in attending the patient in a professional capacity and which was necessary to enable the professional to act in the capacity" and "any opinion outside his care is irrelevant."

The Court of Appeals of Minnesota agreed with respondents, and in its decision, referenced Minn. Stat. § 595.02, subd. 5. The statute was enacted to allow defendants in a medical malpractice suit an opportunity to conduct informal discussions with plaintiffs' treating physicians. The statute states:

A party who commences an action for malpractice...against a health care provider on the person's own behalf...waives in that action any privilege existing under subdivision [1(d)], as to any information or opinion in the possession of a health care provider who has examined or cared for the party....This waiver must permit all parties to the action, and their attorneys...to informally discuss the information or opinion with the health care provider if the provider consents....Appropriate medical authorizations permitting discussion must be provided by the party commencing the action upon request from any other party.

After interpreting the plain meaning of the statute, the Court of Appeals of Minnesota reversed the district court's decision. The court held that because the statute waived the patient-physician privilege, the appellant could inquire into any information or opinion the physician possesses, including opinions on the standard of care and causation relating to the periods when the physician was not caring for the patient. Thus, the district court abused its discretion by issuing a protective order preventing appellant from asking the surgeon about any opinions he may possess.

The respondent petitioned for review. The Supreme Court of Minnesota did not reach the issue. It, instead, vacated the court of appeal's decision, holding that the protective order was not an injunction, and, thus, not an appealable order under Minnesota Rule of Civil Appellate Procedure 103.03(b).

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