PROCEDURE-DISCOVERY OF TREATING PHYSICIAN-EX PARTE COMMUNICATION

Mertis v. Dong-Joon Oh, 2022 Pa. Super. LEXIS 322 (August 2, 2022) (Pellegrini, J.)  Bobbi Ann Mertis (Mertis) appeals from the order entered in the Court of Common Pleas of Luzerne County (trial court) denying her motion to disqualify the law firm representing anesthesiologist Dr. Dong-Joon Oh (Dr. Oh) in this medical malpractice case. The case involves Pa.R.C.P. 4003.6, which deals with how information can be obtained from a treating physician. The issue in this case is simple: can a law firm representing the defendant have ex parte communications with a non-party treating physician without violating Pa.R.C.P. 4003.6? Because such ex parte communications are not permitted under this Rule, we reverse and remand the matter to the trial court. The relevant facts and procedural history of this case are as follows. On August 17, 2015, Mertis underwent knee surgery at Wilkes-Barre General Hospital performed by orthopedic surgeon Dr. Eugene Kim (Dr. Kim). At the beginning of the procedure, Dr. Oh administered a femoral nerve block to anesthetize Mertis’s knee area, which she maintains was performed negligently. On August 16, 2017, Mertis filed a complaint against Dr. Oh and the above-captioned defendants claiming that she suffered a femoral nerve injury during the nerve block procedure that left her disabled with persistent weakness, numbness and pain in her left leg. Dr. Oh retained Attorneys James Doherty and Grace Doherty Hillebrand from the law firm Scanlon, Howley & Doherty, P.C. (Scanlon Howley) to represent him and they entered their appearance on behalf of Dr. Oh and his employer, North American Partners in Anesthesia, LLC (NAPA) in April 2018. In April 2021, Mertis filed a motion for sanctions to disqualify defense counsel from representing defendants and preclude further ex parte communications with plaintiff’s treating physician. Mertis sought that Scanlon Howley be disqualified from the litigation for violating Rule 4003.6 because of its numerous unauthorized communications with Dr. Kim. At oral argument, Attorney Hayes maintained that he acted squarely within the first exception to Rule 4003.6 because “[Dr. Kim] reached out to me. . . . Dr. Kim sought the representation of me in response to the subpoena he received in this case which compelled him to appear for a deposition. Rule 4003.6 was not only intended to protect patient’s rights of the Plaintiff, but also the rights of Dr. Kim to have representation at a deposition in the case where his treatment has been impugned.”  Just because Dr. Kim requested through his insurance carrier that Mr. Hayes be appointed to represent him based on his experience with Scanlon Howley in a previous medical malpractice litigation does not excuse compliance with the Rule. While Dr. Kim’s choice of representation should be afforded appropriate deference, that deference does not extend where it has the effect of violating the Rule that ex parte communications are forbidden between the defendant and the plaintiff’s treating physician except in accordance with the Rule. Accordingly, we reverse the trial court’s determination that Pa.R.C.P. 4003.6 was not violated. With regard to Mertis’s claim that disqualification of Scanlon Howley from this litigation is necessary for its violation of this discovery Rule, we are mindful that this remedy is warranted under limited circumstances. See Rudalavage v. PPL Elec. Utilities Corp., 268 A.3d 478 (Pa. Super. 2022). Specifically, 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.” Id. (citation omitted). We remand to the trial court to determine the appropriate remedy in light of Appellee’s violation of Pa. R.Civ. Pro. 4003.6 Order reversed. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.