Background Facts
On August 16, 2017, Bobbi Ann Mertis filed a Pennsylvania medical malpractice action against Dr. Dong-Joon Oh, North American Partners in Anesthesia (Pennsylvania), LLC (NAPA), Wilkes-Barre Hospital, and Commonwealth Health. The complaint alleged Dr. Oh negligently administered a femoral nerve block to anesthetize Mertis’s knee prior to her
August 17, 2015 ACL reconstruction surgery, which caused a femoral nerve injury. Dr. Oh retained James Doherty, Esq. and Grace Doherty Hillebrand, Esq. from the law firm of Scanlon, Howley & Doherty (Scanlon Howley) to represent him. In April 2018, attorneys Doherty and Doherty Hillebrand entered their appearance for Dr. Oh and his employer, NAPA.
On July 27, 2020, Mertis, represented by Angelo Theodosopoulos, Esq., served a subpoena on Dr. Eugene Kim, the orthopedic surgeon who performed Mertis’s knee surgery, to appear at a discovery deposition. Mertis had not named Dr. Kim as a defendant, although some of the complaint’s allegations were critical of the care he provided.
After receiving the subpoena, Dr. Kim asked his professional liability insurer to assign Kevin Hayes, Esq. of Scanlon Howley to represent him in this case because Hayes had previously represented Dr. Kim in an unrelated malpractice case. Scanlon Howley informed Dr. Kim that it was already representing Dr. Oh in the matter, and Dr. Kim signed a waiver of any potential conflict of interest. On August 28, 2020, Attorney Hayes then sent an email to Attorney Theodosopoulos stating Dr. Kim had retained him and requesting to reschedule Dr. Kim’s deposition. Attorney Theodosopoulos did not respond, and the deposition was not rescheduled.
On April 16, 2021, Mertis filed a motion for sanctions to disqualify defense counsel—identified as Attorneys Brian Dougherty, James Doherty, Grace Doherty Hillebrand, Kevin Hayes, and the law firm Scanlon Howley—from representing Dr. Oh and to bar defense counsel’s further ex parte communication with Dr. Kim. Mertis argued that the attorneys from Scanlon Howley should be disqualified from this case for violating Rule 4003.6 by ex parte communicating with Dr. Kim. The trial court determined that defense counsel had not violated Rule 4003.6 and therefore denied Mertis’s motion for sanctions. Mertis appealed.
Pennsylvania Rule of Civil Procedure 4003.6
Pennsylvania Rule of Civil Procedure 4003.6 states:
Rule 4003.6. Discovery of Treating Physician
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.
The Supreme Court of Pennsylvania Middle District stated in its June 16, 2024 Opinion: “we must determine whether the first exception to Rule 4003.6 (client exception) permits an attorney to obtain information outside the discovery
process from one of the plaintiff’s nonparty treating physicians, who becomes the attorney’s client after another attorney in the same law firm became previously engaged to represent a named defendant physician in the same medical malpractice action. Because we conclude that Rule 4003.6 precludes a law firm representing a defendant treating physician from obtaining information outside the discovery process from a nonparty treating physician by subsequently entering into an attorney-client relationship with the nonparty treating physician, we affirm the Superior Court.”
“We conclude that Rule 4003.6’s plain language places a restriction on an attorney’s ability to obtain information from a treating physician, except when the treating physician is the attorney’s client or an actual or ostensible agent of the attorney’s client. Neither party offers a different interpretation or argues that the rule is ambiguous.”
“Because Attorney Doherty Hillebrand represented Dr. Oh in this medical malpractice case, Rule 4003.6 precluded her from obtaining information from any of Mertis’s treating physicians, including Dr. Kim, without obtaining Mertis’s written consent or engaging in an authorized method of discovery, except Rule 4003.6(1) allowed her to obtain information from her client, Dr. Oh, without obtaining such consent or using an authorized method of discovery. As Attorney Doherty Hillebrand was a member of the law firm Scanlon Howley, this restriction extended to all the law firm’s attorneys, including Attorney Hayes. Accordingly, we conclude that at the time Dr. Kim contacted Attorney Hayes, Attorney Hayes was precluded from ex parte obtaining information from Dr. Kim because Attorney Hayes was associated with the law firm representing Dr. Oh. At that point, the plain language of Rule 4003.6 provides that the only means by which Attorney Hayes could have obtained information from Dr. Kim was by obtaining Mertis’s written consent or by utilizing an authorized method of discovery. The client exception in Rule 4003.6(1) does not apply here because Dr. Kim was not Attorney Hayes’s client at the time the rule restricted Attorney Hayes’s ability to obtain information from Dr. Kim, and the rule does not provide that an attorney subject to Rule 4003.6’s restriction may enter an attorney-client relationship in order to obtain information from a treating party’s physician. Moreover, under Pennsylvania law, “[c]onfidential information gained by one member of a law firm is imputable to other members of the same law firm” … Accordingly, we agree with the Superior Court that permitting Scanlon Howley to represent both Dr. Oh and Dr. Kim was equivalent to ex parte communication because the dual representation “give[s] the defense access to information that can only be obtained otherwise through authorized discovery[.]””
“Ultimately, if we conclude Rule 4003.6 permits the conduct in this case, such interpretation would turn Rule 4003.6(1) into a loophole for one attorney in a law firm to represent a defendant doctor and another attorney in the same law firm to represent a plaintiff’s treating physician concurrently. Such reading would undermine the rule and allow attorneys in law firms to have unrestricted access to information from the treating physician. As related to this case, there would be nothing preventing a medical malpractice insurance carrier from sending all the plaintiff-patient’s treating physicians for representation to the same law firm representing a defendant physician to circumvent Rule 4003.6. When the same law firm represents the defendant treating physician and other treating physicians, the concern that one or more of the physicians may be improperly influenced or dissuaded from testifying is heightened.”
The Supreme Court concluded: “a law firm representing a defendant treating physician cannot obtain information from a nonparty treating physician without the patient’s written consent or through an authorized method of discovery. The Rule 4003.6(1) client exception does not permit a law firm to obtain information from a nonparty treating physician by entering into an attorney-client relationship with that physician when the law firm’s attorneys were already prohibited from obtaining information from that physician under Rule 4003.6 prior to entering such attorney-client relationship.”
Source Mertis v. Oh, M.D., J-62-2023.
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