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Yes, Virginia, Ex Parte Communication is Wrong

July 8th, 2013

Take a look at your files, do you have a certain PQME on any of them?  A certain… Ajit Singh Arora, M.D.?

It looks like Dr. Arora was reprimanded by the Administrative Director’s QME discipline unit for engaging in ex parte communication with applicant’s counsel.  Apparently, the PQME engaged in “ex parte communication with applicant’s attorney regarding the fee for his deposition, and notification that his deposition would be cancelled because he had not received advance payment in the amount he had requested.”

Ex parte communication between a panel qualified or agreed medical evaluator and one of the parties is a serious issue.  Attorneys often try to brush it off with words like “clerical” or “minor,” but the damage is done not necessarily by the communication itself, but by the damage it does to our entire medical evaluation system.

The Labor Code tells parties to workers’ compensation matters that they must forfeit their rights to due process: one no longer has the right to put on witnesses, to offer evidence, to rebut the claims made, and instead must rely on state-provided witnesses (PQMEs) or to present evidence only by permission (AMEs).

On top of that, parties cannot cross-examine expert witnesses before the Judge in open court – all medical-legal discovery is relegated to reports and depositions, even though the WCJs are charged with determining the credibility of the witnesses, which is more effectively done in person.

To add to that the idea that we’re going to wink and nod or offer no more than a slap on the wrist to those who impeach the limited credibility of the PQME system does no favors to this process.  When QMEs are given temporary suspensions for engaging in ex parte communication, it naturally stokes the paranoia of those convinced that the panels are already stacked against them with biased physicians (you know who you are).

In any case, we as a community should be diligent about ex parte communication – whether the doctor calls you or opposing counsel, it should always be made known to the other party and reported to the Medical Unit, and the Medical Unit should be diligent about weeding out QMEs who think that they get to decide what type of ex parte communication is acceptable and what type isn’t.  We’re in the age of e-mails and facsimiles – there’s no reason why all communication can’t be made simultaneously to all parties.

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