RPC 184: Communications with Physician Performing Autopsy

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.