Ex Parte Communication with a Treating Physician in an Estate Matter

May 16, 2017 § Leave a comment

Most of us are familiar with the prohibition in MRE 503(f) against ex parte communication with the treating physician of an opposing party, even when that party has put his own physical, mental, or emotional condition in issue.

Does that prohibition apply in a will contest where both parties claim to be personal representatives of the deceased?

In a case of first impression, the MSSC answered that it does not.

At the trial level, in a will contest involving Katherinne Lyons’ estate, between the testator’s brother (Larry Lyons) and nephew (Anthony Lobred), counsel for Lobred had ex parte communication with the testator’s treating physician before her depostion. Lyons filed a motion to strike the depostion testimony, which the chancellor granted. In the case of Estate of Lyons v. Lyons, handed down April 6, 2017, the MSSC reversed and remanded. Justice Coleman’s wrote for a unanimous court:

¶17. Although the facts surrounding Katherine’s testamentary capacity and Larry’s alleged undue influence are hotly disputed, the facts pertinent to the narrow issue before the Court on interlocutory appeal are not in dispute. It is undisputed that Lobred’s counsel communicated with Dr. Clement regarding Katherine’s medical condition prior to Dr. Clement’s deposition. The specific issue before the Court today is whether the testimony of the testator’s treating physician should be excluded based on contact between the treating physician and a party without the opposing party’s consent in a will contest wherein both parties are personal representatives of the deceased.

¶18. A panel of the Court ordered Larry to file a response to Lobred’s petition for permission to appeal addressing “whether the rule prohibiting ex parte communication with a treating physician applies in an estate matter.” The Court has held that the rule prohibiting ex parte communications under Mississippi Rule of Evidence 503(f) applies in the context of personal injury and medical malpractice cases. Scott v. Flynt, 704 So. 2d 998, 1000-01 (Miss. 1996). The comment to Rule 503 states that the “primary impact of subdivision (f) will be in personal injury actions, although the exception by its terms is not so limited.” According to the comment, the ex parte rule contained in Rule 503(f) could apply in estate matters. Thus, the question initially framed by a panel of the Court may be answered in the affirmative. However, the inquiry does not end here because the Court has yet to address how or if the rule prohibiting ex parte communications would apply in the context of a will contest where both parties can claim to be personal representatives of the deceased.

¶19. At the time of the trial court’s order on Larry’s motion to strike Dr. Clement’s testimony, Rule 503(f) provided:

(f) Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.

Miss. R. Evid. 503(f) (2015). Amended Rule 503(f) [Fn omitted] now provides:

(f) Waiver by Pleadings; Ex Parte Contact. A party whose pleadings place in issue any aspect of that party’s physical, mental, or emotional condition thereby–and to that extent only–waives the privilege. The exception in this subdivision (f) does not authorize ex parte contact by an opposing party.

Miss. R. Evid. 503(f) (2016).

¶20. In Scott, the trial court ordered the plaintiff in a medical-malpractice case to execute an unconditional medical waiver and permit ex parte conferences by the defendants with any medical provider of the plaintiff. Scott, 704 So. 2d at 999. On interlocutory appeal from the trial court’s order, the Scott Court addressed “two interrelated questions of law[,]” which were framed as “(1) the scope of the medical waiver as contemplated by Mississippi Rule of Evidence 503 and (2) whether or not ex parte contacts with medical providers are permissible under the rules of discovery in the Mississippi Rules of Civil Procedure.” Id. at 1000.

¶21. The Scott Court recognized that a “significant argument about ex parte interviews revolves around who is the holder of the privilege.” Id. at 1004. Before answering the question of how or if the ex parte rule would apply in the context of a will contest, the Court must determine who holds the medical privilege of the testator in a will contest. One of the two permitted methods stated by the Scott Court for obtaining relevant medical information ex parte from a treating physician is through “voluntary consensual disclosure by the patient who is the holder of the privilege.” Id. at 1007. Here, the patient is deceased, so consent would have to be obtained from whoever holds the privilege of the deceased. We hold that in the instant case both parties were personal representatives of the deceased and, therefore, under either the rule or the statute, no prohibited ex parte contact occurred. Because the result is the same whether we employ the rule or the statute, we do not today address any argument or disseminate any holding addressing which governs over the other.

¶22. Mississippi Code Section 13-1-21(1) provides:

(1) All communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such party shall not be required to disclose the same in any legal proceeding except at the instance of the patient or, in case of the death of the patient, at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will. (Emphasis added.)

¶23. Under Section 13-1-21(1), “the personal representative or any of the legal heirs or any contestant or proponent of the will” may waive the medical privilege. However, Rule 503(c) identifies the “personal representative” only as an individual who may waive the general medical privilege of a deceased patient. Rule 503(c) [Fn omitted] states:

(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the patient. Miss. R. Evid. 503(c).

¶24. Under Rule 503(c), a deceased patient’s “personal representative” may claim the medical privilege. Black’s Law Dictionary defines a “personal representative” as: “Someone who manages the legal affairs of another because of incapacity or death, such as the executor of an estate. Technically, an executor is a personal representative named in a will, while an administrator is a personal representative not named in a will.” Personal representative, Black’s Law Dictionary (10th ed. 2014).

¶25. Katherine unequivocally stated in her 2005 will: “I hereby nominate, constitute, and appoint my nephew, Anthony Lobred, Executor of this my Last Will and Testament and I authorize and empower my said Executor to do any and all things which in his opinion are necessary to complete the administration and settlement of my estate, including full right, power and authority, without the necessity of obtaining an order from any Court and upon such terms and conditions as my said Executor shall deem best for the settlement of my estate, to bargain, sell at public or private sale[,] convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate.” Here, Lobred carried out his duty as Katherine’s personal representative by probating her 2005 will as muniment of title. Katherine’s 2012 will contained a similar provision designating Larry as executor. As a result, both Lobred and Larry hold the general medical privilege as Katherine’s “personal representative” under the plain language of Rule 503(b).

¶26. Lobred argues that there is no conflict because Rule 503 is silent regarding will contests, whereas Section 13-1-21(1) specifically addresses the medical privilege in the context of will contests and provides rights not otherwise provided for by the rules of evidence. While we agree with the result urged by Lobred, we disagree that the result stems only from the combination of the statute and the silence of the rule. Rather, because Rule 503 provides that the personal representative may claim the privilege on behalf of a deceased person, and in Scott we held that the party who may claim the privilege may waive the privilege, it is not the silence of Rule 503 but its content that undergirds our holding.

¶27. Section 13-1-21(1), on the other hand, specifically addresses waiver of the medical privilege in the context of a will contest. Under both Rule 503 and Section 13-1-21(1), the medical privilege belongs to both Lyons and Lobred. Under Section 13-1-21(1), the medical privilege may be waived by the personal representative, any legal heir, or any proponent or contestant of a will. Thus, Section 13-1-21(1) authorizes Lobred to waive the entire medical privilege as a personal representative and contestant of the 2012 will. Because Rule 503(c) and Section 13-1-21(1) both authorize Lobred to waive the entire privilege, the ex parte rule of Rule 503(f) does not operate to bar his attorney from speaking alone with the physician witness.

The Nefarious Practice of Trial Briefs

May 7, 2014 § 11 Comments

The COA case of Dean v. Slade, et al., decided April 22, 2014, references a practice that I consider to be deceptively nefarious.

It’s the practice of presenting the trial judge in advance of trial with a document discussing the anticipated testimony and exhibits, the applicable law, and argument on the merits. These offerings are variously styled as “Trial Brief,” or “Trial Memorandum,” or the like.

In Dean, the content of the trial brief is described by the COA as ” … a summary of facts and the pertinent law on adverse possession.” The COA rejected the appellant’s argument that it was an improper ex parte communication because he had failed to raise it in an earlier appeal on the merits, and the court held that he could not relitigate the issue in this later appeal on other issues.

The COA did not address the propriety of this practice because that issue was not squarely presented, but it is a practice that I think needs to be addressed.

In a custody case I tried before the turn of the century, counsel opposite presented the judge at the opening of the trial with a so-called “Trial Binder” that included summaries of the expected testimony of each of his side’s witnesses, a copy of each exhibit he expected to offer in evidence, and a brief setting forth his argument on the law applicable to each contested issue. I vigorously objected, arguing that the documents included inadmissible hearsay, that some of the witnesses, some testimony, and some exhibits may not even make it into evidence, and that it was improper to attempt to influence the judge in that manner. The judge swept aside my objections, stating that there had been exhaustive discovery, and that she was sure there were no surprises. After a five-day trial, the judge ruled in favor of the other party. We appealed and the COA reversed on other grounds. The issue of the trial binder was not raised; there was enough other error that we did not need it.

A lawyer in this district told me of a recent experience he had in north Mississippi. He said that he was handed a “Trial Brief” immediately before the opening of trial, and was pretty steamed to see a certificate of service showing that a copy of the document had been mailed to the judge several days before. The trial brief included all of the same type information described above. When the chancellor opened court, the lawyer stood to voice his objection, but the judge cut him off with the announcement that he had received the trial brief, and when he discovered what it was, sealed it back in its envelope and set it aside without reading it. When his staff attorney told him that she had also received a copy, he directed her not to look at it either.

Good for him.

The chancellor’s job is to hear and consider all of the admissible evidence taken in open court, and to make an independent, impartial decision, untainted by outside information or influence. As the COA said recently in Burnham v. Burnham, “Chancellors are charged with the duty of being independent fact-finders … ” To me, these so-called trial briefs are nothing more than a naked attempt to influence the trial judge with information on the merits outside the trial that may be inadmissible and even inflammatory. I think it’s fair to say that it’s an underhanded way for an attorney to get the judge to see and possibly consider evidence that the lawyer knows he will be unsuccessful in getting into evidence at trial.

When a chancellor says, “Let it be admitted into evidence,” what she is really saying is, “I can hear or look at this evidence because it meets the threshhold requirements of the rules of evidence.” That can only be done in the context of a trial, where both sides have the opportunity to object and cross examine.

Another aspect of the experiences noted above is the ex parte nature of the communication. As I have pointed out here before, just because you hand opposing counsel a copy of the document that does not mean it is not earwigging. Uniform Chancery Court Rule (UCCR) 3.10 states in part:

No person shall undertake  to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith.  No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.

That reference to briefs in the rule does not alter, amend or cancel the language preceding it.

In Dean, the trial memo called into question the impartiality of the sitting chancellor to the extent that she recused herself from further participation in the case. The same can happen in your cases.

The only way that a pre-trial brief can be proper, in my opinion, is if a chancellor asks the parties for one addressing certain matters in advance of trial. Assuming it asks for argument on the law, I would think that would be perfectly permissible, because it puts both sides on an even footing. I can hardly imagine a chancellor, though, who would ever ask parties to include prospective evidence in the submission. The law, yes; evidence, no.

In my court, I would be offended by an attempt to present me with extra-evidentiary material in a matter pending before me. I believe most chancellors would agree, or at least would do as the north Mississippi chancellor did in his case. I want my opinion to reflect only what is in the record (sometimes I do a better job of that than other times), and nothing more. The old saying, “You can’t unring a bell,” is applicable here.

I wish there were an explicit ban against this practice. Maybe a rewording of UCCR 3.10 is in order.

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