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Pa. v. Geisinger-Community Med. Ctr., PA No. 20-CV-4775 (C.P. Lackawanna March 4, 2022)
(Nealon, J.)  In this malpractice action asserting negligence by various health care providers that caused the minor-plaintiff to develop catastrophic brain injuries and neurological damage during her birth in 2006, plaintiff conducted the discovery deposition of the labor and delivery nurse who is a named defendant.  After that nurse had demonstrated current understanding of reassuring and non-reassuring signs on fetal monitoring strips and defined “tachycardia,” “variable,” “late,” “deep,” and “prolonged” decelerations, and “absent,” “minimum,” “moderate” and “marked” variability, plaintiff’s counsel displayed the fetal monitoring strips to the nurse and attempted to question her regarding any reassuring and non-reassuring findings on those strips.  Following suggestive interjections by her counsel, the nurse, who had worked as a labor and delivery nurse for almost 40 years until her retirement in 2008, stated “I don’t know…that I would be able to interpret it satisfactorily.” When plaintiff’s counsel attempted to explore the nurse’s current ability to review and comprehend the strips, her counsel objected and instructed the nurse not to answer any questions concerning any fetal monitoring strips, thereby precipitating plaintiff’s instant discovery motion seeking to compel the nurse to answer these inquiries and to impose monetary sanctions upon her for requiring plaintiff to file a discovery motion.

Plaintiff is entitled to probe the legitimacy and extent of any claimed incompetency by the nurse regarding her ability to read or understand the fetal monitoring strips, and the jury will ultimately determine the believability of any claim by her that she is no longer capable of reading the numeric grids on the strips that are used to record the fetal heart rate, uterine activity, and their duration.  Counsel for a deponent may direct the witness not to answer a specific question only if that instruction is necessary to (a) protect a recognized privilege; (b) enforce an evidentiary limitation established by an earlier court ruling in the case, or (c) present a motion for a protective order based upon grounds identified in Pa. R.Civ.P.4012(a).  Since the instruction not to answer plaintiff’s proposed inquiries in this case was not based upon one or those legitimate reasons, plaintiff is entitled under Pa.R.Civ.P.4019(a)(1)(viii) and (g)(1) to be reimbursed for the counsel fees incurred in preparing and presenting this discovery motion.  Consequently, the nurse will be directed to submit to an additional deposition within the next 30 days in order to answer questions concerning her interpretation of the fetal monitoring strips and her present ability to do so, and will further be required to reimburse plaintiff for the counsel fees incurred in connection with plaintiff’s discovery motion.