Some injured workers’ attorneys demand that nurses and claims representatives not contact any treating physicians without notifying injured workers or their attorneys, and without allowing the injured workers attorneys to be involved in the communication with the physician. These are referred to as “ex parte” communications, which are those made by one party only. Because the doctor-patient privilege has been waived by filing of the claim, claims representatives and nurses working on a claim may engage in ex parte communications with providers about medical information that relates to the work injury or any medical condition that contributes to the need for medical treatment in the claim. This waiver of the doctor-patient privilege applies even when the injured worker is represented by an attorney.
There is no statute, rule or case law that limits such ex parte communications simply because the injured worker is represented; however, there are limitations on how ex parte communications are conducted by lawyers and any persons acting on behalf of lawyers. In Samms v District Court, 908 P.2d 530 (Colo. 1995), the Colorado Supreme Court prohibited a defense attorney from ex parte communication with a plaintiff’s treating health care providers without first notifying plaintiff’s counsel of the intended contact. Claims representatives and nurses working on a claim are not restricted (per the Samms case) from ex parte communications with providers, except when they are acting on behalf of lawyers, such as when there is litigation involving the issue that may be the subject of the communications.
It is important to note that Colo. Rev. Stat. §8-43-404(5)(c) of the Workers’ Compensation Act was amended to require any treating physician who communicates with the employer or insurer outside the presence of the injured worker to capture, in writing, the relevant and material information of the communication and to provide the injured worker access to the writing in the same manner as other medical record disclosures. This amended statute does not apply to office personnel or staff communications when the subject is scheduling or billing, or involves other administrative issues.
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