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Defense Digest

A Law Firm Defending a Named Physician Cannot Also Represent a Non-Party Treating Physician for Purposes of a Subpoenaed Deposition

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by Daniel Dolente

Key Points:

  • The Pennsylvania Rules of Civil Procedure prevent a defendant from contacting or otherwise discussing the case with one of the plaintiff’s treating physicians.
  • Absent written approval from counsel for the plaintiff, if a law firm represents a named defendant physician in a medical malpractice case, different attorneys from that same law firm may not represent a non-party treating physician for purposes of a subpoenaed deposition.
  • The Superior Court has held that, allowing a defense firm to represent both would be the equivalent to having prohibited ex parte communications with the non-party treating physician.

During the course of discovery in many medical malpractice actions, after written discovery is exchanged between the parties and medical records are subpoenaed, there comes a point where one or more of the parties will want to question a plaintiff’s treating physician. While there is no rule preventing a plaintiff from contacting and discussing the case with his own doctors, the Pennsylvania Rules of Civil Procedure prevent a defendant from contacting or otherwise discussing the case with one of the plaintiff’s treating physicians. Such a situation is addressed by Pennsylvania Rule of Civil Procedure 4003.6, “Discovery of Treating Physician,” which states:

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.

Pennsylvania courts have stated that the purpose of Rule 4003.6 is to prevent ex parte communications between opposing counsel and a plaintiff’s treating physician, meaning discussions outside of the normal course of discovery devices, such as written interrogatories or depositions where all parties are invited to attend. The courts have reasoned that there is a recognized privacy interest underlying the physician-patient relationship and a physician has a duty of loyalty to his patient that should be protected. Thus, there are only three exceptions to the rule prohibiting a defendant from speaking to a plaintiff’s physician.

Rule 4003.6 was recently examined by the Pennsylvania Superior Court in Mertis v. Oh, 2022 WL 3036698 (Pa. Super. Aug. 2, 2022). In Mertis, the plaintiff underwent an orthopaedic procedure performed by surgeon Eugene Kim, M.D. Prior to the procedure, the anesthesiologist, Don-Joon Oh, M.D., administered a femoral nerve block. The plaintiff alleged that Dr. Oh administered the nerve block negligently, causing her a femoral nerve injury and leaving her partially disabled in the left leg. In the subsequent lawsuit, the plaintiff named Dr. Oh as a defendant but did not name Dr. Kim.

During the course of discovery, plaintiff’s counsel subpoenaed the surgeon, Dr. Kim, to appear for a deposition. When Dr. Kim received the subpoena, he asked his professional liability insurer to assign an attorney he knew, who also happened to work for the same law firm representing the defendant, Dr. Oh. The law firm appropriately advised Dr. Kim they were already representing a named defendant in the case, Dr. Oh, and that a conflict waiver would be required if a different attorney from the firm was to represent Dr. Kim for purposes of his deposition. Dr. Kim knowingly signed the waiver, allowing the law firm to represent him for purposes of the deposition. Additionally, the attorney assigned to represent Dr. Kim wrote to plaintiff’s counsel, notifying him that he would be representing Dr. Kim for purposes of the deposition. Counsel for the plaintiff did not respond to this letter for six months.

Approximately nine months later, the plaintiff’s attorney filed a motion for sanctions to disqualify the law firm from representing the defendants and to preclude further alleged ex parte communications with the plaintiff’s treating physician. This motion was based on Pennsylvania Rule of Civil Procedure 4003.6. The trial court denied the motion for disqualification and sanctions, holding there was no evidence the attorney for Dr. Oh had any ex parte communications with the attorney for Dr. Kim. The plaintiff appealed.

On appeal, the Superior Court first looked at the Rule itself, which states that opposing counsel may only obtain information from a party’s treating physician by securing written consent of that party or through an authorized method of discovery, such as written interrogatories, request for production of documents or deposition. In applying Rule 4003.6, the Superior Court held that none of the exceptions applied and that the rule was violated.

In so ruling, the Mertis court did not adopt the defense’s argument that exception number 1, which provides that Rule 4003.6 does “not prevent an attorney from obtaining information from the attorney’s client,” applied in this case. That is, it did not matter that Dr. Kim was a client of the same firm that represented Dr. Oh. The Superior Court did not find persuasive the facts that: (1) Dr. Kim elected to have a different attorney from Dr. Oh’s law firm represent him; (2) Dr. Kim signed a waiver of the conflict of interest; (3) the trial court found no evidence of any ex parte communications between the lawyers for Dr. Oh and Dr. Kim; and (4) the plaintiff’s counsel was promptly notified of Dr. Kim’s representation and waited six months to raise any objection.

Rather, the Superior Court reasoned that Rule 4003.6 “never envisioned” the same law firm would represent both a defendant in the case and a treating physician. According to the Superior Court, allowing the defense firm to represent the surgeon, while also representing the anesthesiologist, was the same thing as having ex parte communications. On this basis, the court found the first exception to Rule 4003.6 inapplicable and held that the defense firm violated Rule 4003.6. The case is currently on remand to the trial court to determine whether defense counsel should be disqualified.

After Mertis, the Superior Court has laid down a clear, bright-line rule. Absent written approval from counsel for the plaintiff, if a law firm represents a named defendant in the plaintiff’s case, different attorneys from that same law firm may not represent a non-party treating physician for purposes of a subpoenaed deposition.

Firm Highlights

Result

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Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

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Thought Leadership

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blue facade of a hospital sign against blue sky

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Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

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Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Thought Leadership

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