PROCEDURE-DISCOVERY OF TREATING PHYSICIAN-EX PARTE COMMUNICATION

August 22nd, 2022 by Rieders Travis in Procedure

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.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

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