Defense Cannot Represent Nonparty Treating Doctor During Deposition: On August 17, 2014, Bobbi Ann Mertis (Mertis) underwent knee surgery at Wilkes-Barre General Hospital performed by orthopedic surgeon Dr. Eugene Kim (Dr. Kim). At the beginning of the procedure, Dr. Oh administered a femoral nerve block to anesthetize Mertis’s knee area, which she claimed was performed negligently.
On August 16, 2017, Mertis filed a complaint against Dr. Oh and others claiming that she suffered a femoral nerve injury during the nerve block procedure that left her disabled with persistent weakness, numbness, and pain in her left leg. Dr. Oh retained Attorneys James Doherty and Grace Doherty Hillebrand from the law firm Scanlon, Howley & Doherty, P.C. (Scanlon Howley) to represent him and they entered their appearance on behalf of Dr. Oh and his employer, North American Partners in Anesthesia, LLC (NAPA), in April 2018.
In July 2020, Mertis subpoenaed Dr. Kim to appear at a discovery deposition on August 31, 2020. Scanlon Howley had represented Dr. Kim in a previous medical malpractice action, and when he received the subpoena for the deposition in this case, he asked his professional liability insurer to assign Kevin Hayes, Esq. of Scanlon Howley to represent him. The law firm advised Dr. Kim that it was already representing Dr. Oh and he signed a waiver of any potential conflict of interest.
Rule 4003.6. Discovery of Treating Physician
Rule 4003.6. Discovery of Treating Physician states: “Information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from:
(1) the attorney’s client,
(2) an employee of the attorney’s client, or
(3) an ostensible employee of the attorney’s client.
In its opinion dated August 2, 2022, the Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) stated: “What Pa.R.C.P. 4003.6 envisioned is that a different law firm would represent the treating physician, not the same law firm which makes that exception inapplicable. Moreover, to allow Scanlon Howley to represent treating physician Dr. Kim in deposition testimony, while at the same time representing Dr. Oh, is the same as having ex parte communication. To do so would give the defense access to information that can only be obtained otherwise through authorized discovery that would be limited to material and pertinent information preventing breach of the confidential doctor/patient relationship only to the extent necessary.”
“While Dr. Kim’s choice of representation should be afforded appropriate deference, that deference does not extend where it has the effect of violating the Rule that ex parte communications are forbidden between the defendant and the plaintiff’s treating physician except in accordance with the Rule. Accordingly, we reverse the trial court’s determination that Pa.R.C.P. 4003.6 was not violated.”
Source Mertis v. Oh, M.D., 2022 PA Super 128.
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