Ex Parte Communications with Plaintiff’s Treating Physician Warrant Sanction
Bobbi Ann Mertis (Mertis) filed a medical malpractice action against anesthesiologist, Dr. Dong-Joon Oh (Oh), alleging that he negligently performed a femoral nerve block in connection with a knee surgery performed by Dr. Eugene Kim (Kim). Oh retained Attorneys James Doherty and Grace Doherty Hillebrand from the law firm Scanlon, Howley & Doherty, P.C. (Scanlon Howley) to represent him.
Attorney Angelo Theodosopoulos represented Mertis. He subpoenaed Kim to appear at a discovery deposition. Kim was not a named defendant, and by this time the statute of limitations had run. Kim contacted Scanlon Howley and asked Attorney Kevin Hayes to represent him. Kim understood that the law firm was representing Oh and he waived of any potential conflict of interest. Hayes advised Theodosopoulos that he represented Kim and requested a change in the deposition date. Theodosopoulos notified Hayes that Scanlon Howley had a conflict in representing Oh and Kim, Mertis’ treating orthopedic surgeon. Theodosopoulos further contended that Scanlon Howley was not authorized to contact and speak to Kim.
Mertis filed a motion for sanctions to disqualify Scanlon Howley from representing Oh and the other defendants, and preclude further ex parte communications with Kim on the basis that the firm violated Rule 4003.6. Rule 4003.6. Discovery of Treating Physician provides:
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.
Hayes argued because Kim (his client) contacted him for representation, he did not violate Rule 4003.6. He also posited Rule 4003.6 was designed to protect patient’s rights, and Kim’s right to be represented at a deposition. The trial court found in favor of Scanlon Howley, concluding Mertis did not have any evidence concerning the extent of Hayes’ communications with Kim and/or his involvement Oh’s defense. The trial court concluded the same concerning the communications between Attorneys Grace/Doherty and Kim; or any communications between Oh and Kim.
On appeal, Mertis argued that the exceptions to Rule 4003.6 only applied in circumstances where the treating physician is a named defendant or the employee/representative of a named defendant. Mertis also asserted Scanlon Howley’s communications with Kim created the potential for mischief, and the opportunity for defense counsel to gain and share improper discover/knowledge.
The Pennsylvania Superior Court cited Marek v. Ketyer, 733 A.2d 1268, 1270 (Pa. Super. 1999), for the proposition Rule 4003.6 implicitly recognizes the privacy interest underlying the physician/patient relationship and the physician’s duty of loyalty to the patient. Under the Rule, opposing counsel may only obtain information from a party’s treating physician by securing the written consent of the party or through an authorized method of discovery such as written interrogatories, requests for production of documents or by way of deposition. See id.; see also e.g., Rules 4004(a), 4007.1(a), 4009.21.
The Court believed Pa.R.C.P. 4003.6 did not envision defense counsel would both represent the defendant, and a non-party treating physician, and found that it was tantamount to an ex parte communication. Permitting this conduct “wound 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.” The Court also determined the fact that Kim contacted Hayes was irrelevant, and did not excuse compliance with Pa.R.C.P. 4003.6. Accordingly, the Court reverseds the trial court’s determination that Pa.R.C.P. 4003.6 was not violated.
With regard to Mertis’s request to disqualify Scanlon Howley from this litigation, the Court recognized disqualification is appropriate only when “another remedy for the violation is not available and it is essential to ensure that the party seeking disqualification receives the fair trial that due process requires.” See Rudalavage v. PPL Elec. Utilities Corp., 268 A.3d 470, 478 (Pa. Super. 2022. Therefore, the Court remanded to the trial court to determine the appropriate remedy in light of the violation of Pa. R.Civ. Pro. 4003.6.
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