Plaintiffs in a Pennsylvania medical lawsuit alleged that the defendant hospital and others negligently monitored the plaintiff while providing anesthesia during a surgery on August 28, 2017. They further alleged that the defendants failed to monitor and maintain the plaintiff’s blood pressure and related levels during surgery, such that he suffered post-operative vision loss. The plaintiffs alleged that the plaintiff is now permanently blind as a result of the defendants’ negligence.
On June 20, 2023, the plaintiffs provided the defendants with the expert report of Mary Ann Miknevich, MD, which was dated May 26, 2023. Thereafter, on July 30, 2023, the plaintiffs provided the defendants with the Life Care Plan for David McKeehan (plaintiff), which was prepared by Alex Karras on June 27, 2023. In both expert reports, there were numerous references to conferences and meetings that occurred between Dr. Miknevich and Mr. Karras as well as a
conference between Mr. Karras and Christian Kcomt, M.D. who provided psychiatric care to Mr. McKeehan in the spring of 2020. There was also a conference that occurred on April 12, 2022 that involved both plaintiffs, Dr. Miknevich, and Mr. Karras. Some of these conferences also included the defendants’ attorney, but many did not.
The defendants sought any and all notes, recordings, photos or videos that were taken during these conferences. The plaintiffs objected on the basis of attorney-client privilege and/or the work product doctrine. The defendants filed a motion to compel this discovery on October 5, 2023, and the plaintiffs filed a response.
The trial court held a discovery conference on October 18, 2023 and issued an order that same day granting the defendants’ motion to compel and ordering the production of any and all transcripts, notes, recordings, photos, videos, and/or other information prepared and/or received by Mr. Karras and/or Dr. Miknevich during the conferences and interviews referenced in their reports. The plaintiffs appealed.
As to the initial issue whether the trial court’s discovery order was appealable, the Superior Court of Pennsylvania stated in its December 6, 2024 Opinion: “We are persuaded that the discovery order at issue, involving allegedly privileged information, is appealable as collateral to the principal action pursuant to Pa.R.A.P. 313 … in reviewing the propriety of a discovery order, our standard of review is whether the trial court committed an abuse of discretion. However, to the extent that we are faced with questions of law, our scope of review is plenary.”
The Pennsylvania appellate court stated: “it is clear both of these expert reports provide “the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Pa.R.C.P. 4003.5(a)(1)(B). Dr. Miknevich determined what care Mr. McKeehan needs and authored a comprehensive report explaining her conclusions, the basis for her conclusions, and the facts she relied upon. Mr. Karras thereafter determined the cost of the care prescribed by Dr. Miknevich. The reports specifically list the dates of any interviews and who was included. The reports explicitly detail everything that was discussed during those interviews. In addition, both the experts and the McKeehans plan to testify at trial and can be further examined on the details included in those interviews. There is nothing mysterious and secretive about the interviews conducted. The extensive summary of the interviews in question leaves nothing to the imagination that would “unfairly surprise” the opposition … Here, there are no opinions of third parties who are not subject to cross examination which were relied upon. There is no question the conclusions of the experts are their own. The interviews conducted only included information from the McKeehans themselves, and how Mr. McKeehan’s blindness has affected their lives. There is no discussion or mention of any non-testifying third party. Based on the above, we conclude there was no basis for any additional discovery. Accordingly, the trial court’s order exceeds the scope of the expert witness discovery permitted under our rules. Further, even if there were cause for further discovery, we can find no authority for the invasive disclosure compelled here, i.e. requiring the production of “all transcripts, notes, recordings, photos, videos, and/or other information prepared and/or received” by both experts during the conferences.”
“Our rules simply do not authorize the production of “all” notes and other information and materials prepared and/or received by an expert, even where there is a question about what that expert relied in preparing the report.”
Source McKeehan v. Milton S. Hershey Medical Center, 2024 PA Super 290.
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