In Alabama, there is no privilege “covering communications between a physician and a patient.” Charles W. Gamble, MCELROY’S ALABAMA EVIDENCE § 413.01 (5th ed. 1996). “Communications to a physician or surgeon by a patient or one seeking professional advice are not protected under common law and no such privilege exists in Alabama, absent a statute creating it.” Id. at 1677. Unfortunately, this often leads to situations where medical providers treating injured workers are allowed to discuss the workers’ condition and care with insurance adjusters, case managers, rehabilitation nurses and defense attorneys without the knowledge and consent of the patient. But see, David G. Wirtes, Jr., R. Edwin Lamberth, Joanna Gomez, “An Important Consequence of HIPAA: No more ex parte communications between defense attorneys and plaintiffs’ treating physicians.” AMERICAN JOURNAL OF TRIAL ADVOCACY Vol. 27:1 (2004). Such a rule flies in the face of new privacy rules regarding disclosure of medical information and in a State where there is a doctor-patient privilege when the doctor is a psychiatrist but not an non-psychiatrist M.D., there should be at least a limited privilege for patients to refuse to disclose confidential communications made for the purposes of diagnosis or treatment.
After all, the purpose of such a privilege would be to encourage complete disclosure of facts relevant to the patient’s medical condition so that the physician may give the patient the best possible treatment. Confidential communications include information that the doctor obtains from observation and testing. In a special concurrence in Reid v. Aetna Cas. & Sur. Co., 692 So. 2d 863, 865 (Ala. Civ. App. 1997), Judge Monroe wrote about ways in which some insurance carriers attempt to circumvent the goal of quality medical care that leads to maximum rehabilitation in order to attempt to control the results of medical care:
“I want to briefly discuss an abhorrent and, unfortunately, growing, practice increasingly used by workers’ compensation insurance carriers in which the insurance carriers hire nurses to monitor the recovery of the injured employees. The nurses usually are paid to accompany the employees to all appointments with doctors and physical therapists, to review the employees’ medical records, and to even make home visits to check on the employees’ progress. . . .”
“My objection to this practice is not so much that the insurance carriers are employing these nurses, but that the nurses are usually not forthcoming in revealing the existence, nature, and purpose of their employment. Thus, injured employees are presented with nurses, who appear to be assisting them, when in actuality the nurses might very well testify in court using information gained through the employees’ trust in them. In my opinion, insurance carriers and nurses involved in this practice are treading perilously close to misrepresentation and suppression, if they have not crossed the line already.”
Reid, supra, 692 So. 2d at 865.
At some point, workers who place their physical condition at issue in a lawsuit would have to waive this privilege. However, during the period of treatment, the doctor should be able treat the patient without concern that the one who is holding the checkbook is looking over the doctor’s shoulder and questioning the recommended treatment options. Alabama courts have discouraged this practice in City of Auburn v. Brown, supra, and its progeny.