Pennsylvania Supreme Court Says Attorneys Violated Pa. R.C.P. 4003.6 By Conducting Ex-parte Discovery of Plaintiff’s Non-party Treating Physician’s Information

Pennsylvania Supreme Court Says Attorneys Violated Pa. R.C.P. 4003.6 By Conducting Ex-parte Discovery of Plaintiff’s Non-party Treating Physician’s Information

Pennsylvania Supreme Court Says Attorneys Violated Pa. R.C.P. 4003.6 By Conducting Ex-parte Discovery of Plaintiff’s Non-party Treating Physician’s Information

In Mertis v. Dong-Joon Oh, M.D., No. 31 MAP 2023 (Pa. June 18, 2024), the Supreme Court concluded that Pa. R.C.P. 4003.6 prohibits an attorney from obtaining 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.

Mertis, represented by Attorney Theodosopoulos, sued anesthesiologist, Dr. Oh alleging that Dr. Oh’s negligent administration of femoral nerve block (associated with ACL reconstruction surgery) caused a femoral nerve injury. Mertis did not sue Dr. Eugene Kim, the orthopedic surgeon who performed Mertis’s knee surgery, but nonetheless alleged that Dr. Kim did not identify an anesthetic plan for the procedure, or warn her of the risks of femoral nerve blocks. Mertis further claimed that Dr. Kim told her that the likely cause of her post-operative symptoms was the femoral nerve block.

Oh retained Attorney Doherty and Attorney Doherty Hillebrand of the law firm of Scanlon, Howley & Doherty (Scanlon Howley) to represent him. In response to Attorney Theodosopoulos’ subpoena, Dr. Kim asked his professional liability insurer to assign his former attorney, Kevin Hayes, Esq. of Scanlon Howley to represent him in this case.  Dr. Kim signed a waiver of any potential conflict of interest. Hayes advised Theodosopoulos of his representation of Dr. Kim and asked to reschedule Dr. Kim’s deposition. Attorney Theodosopoulos did not respond, and the deposition was not rescheduled.

Later, Attorney Hayes attended a Zoom deposition of a non-party anesthesiology witness, Dr. Singh. The deposition transcript indicates that Hayes and Doherty Hillebrand appeared as counsel for Dr. Oh. After Dr. Singh’s deposition, Attorney Theodosopoulos sent a letter to Attorney Hayes, stating that he was never authorized to contact and speak to Dr. Kim. Thereafter, Mertis filed a motion for sanctions to disqualify Scanlon Howley and its attorneys from representing Dr. Oh and to bar further ex parte communication with Dr. Kim, claiming that Scanlon Howley and its attorneys violated Rule 4003.6 by ex parte communicating with Dr. Kim.

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.

Pa.R.Civ.P. 4003.6.

The trial court denied Mertis’ motion, concluding that Attorney Hayes did not violate Rule 4003.6 because Dr. Kim sought him out for representation and because there were no facts to show improper lines of communication. The Superior Court reversed the decision of the trial court, concluding that Rule 4003.6 envisioned that a different law firm from the firm that represented the defendant physician would represent the non-party treating physician. The Superior Court remanded the case back to the trial court to determine the proper remedy for defense counsel’s violation of Rule 4003.6.

The Pennsylvania Supreme Court determined that because Attorneys Doherty and Doherty Hillebrand represented Dr. Oh in this medical malpractice case, Rule 4003.6 precluded them 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. The Supreme Court reasoned that because Attorneys Doherty and Doherty Hillebrand were members of the law firm Scanlon Howley, this restriction extended to all the law firm’s attorneys, including Attorney Hayes. Accordingly, the Supreme Court concluded that 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.

The opinion in Mertis v. Dong-Joon Oh, M.D., No. 31 MAP 2023 (Pa. June 18, 2024) can be accessed here.