Malcomson v. Liberty Northwest, 2014 MT 242 Insurers have a legitimate interest in engaging in ex parte contact with healthcare providers for the sole purpose of facilitating the administrative aspects of the claim handling procedure.  A release crafted to authorize this type of limited ex parte contact would not violate a claimant’s right of privacy.

Malcomson v. Liberty Northwest, 2014 MT 242 The Court agreed with the claimant that under § 39-71-604(3), MCA, the insurer could have unfettered access to her healthcare providers and she would never know whether the insurer had obtained irrelevant medical information or had cast her in a negative light to her prejudice, and she would be unable to protect her privacy interest in medical information that is irrelevant to her claim.

Malcomson v. Liberty Northwest [08/16/13] 2013 MTWCC 21 There are myriad methods of communicating in the current era which allow everyone to be part of the conversation in a time-efficient manner.  While Respondent paints a picture in which the entire system grinds to a halt because of the theoretical need to coordinate everyone’s calendars to schedule real-time conference calls if ex parte communication is prohibited, the use of e-mail allows all parties to be privy to communications and has the additional advantage of creating a written record.

Malcomson v. Liberty Northwest [08/16/13] 2013 MTWCC 21 Regardless of whether ex parte communications are more efficient, the standard is whether the statue is narrowly tailored to provide the least restrictive means of access, not necessarily the fastest means of access.  Right of access must be distinguished from method of access, and § 39-71-604(3), MCA, does not set forth a method of access for which a compelling state interest exists.