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Defense Digest

Attorney’s Representation of Treating Physician Prohibits Ex Parte Communication When the Attorney’s Firm Already Represents a Named Defendant

Defense Digest, Vol. 30, No. 3, September 2024

September 1, 2024

by Daniel Dolente and John C. Farrell

Key Points:

  • A law firm that represents a named defendant cannot also represent a non-party treating physician for that physician’s deposition. 
  • The Pennsylvania Rules of Civil Procedure prohibit counsel from communicating with a non-party treating physician outside of the parameters of discovery. 
  • The Pennsylvania Supreme Court ruled that the “client exception” to Rule 4003.6 is inapplicable where the treating physician’s attorney is from a firm that already represents a named party. 

The Supreme Court of Pennsylvania recently solidified developing precedent regarding the limits of the attorney-client relationship, interpretation of Rule 4003.6, and a law firm’s ability to engage in deposition-only representation of a non-party treating physician. 

The court’s June 2024 decision confirms that a law firm representing a named defendant physician cannot circumvent Rule 4003.6’s prohibition against ex parte communications in order to obtain information from a non-party treating physician by way of establishing an attorney-client relationship through representation of that non-party physician for his or her deposition. Mertis v. Oh, 2024 WL 3033416 (Pa. June 18, 2024). The court’s decision affirms the Pennsylvania Superior Court’s 2022 holding in Mertis v. Oh, 2022 WL 3036698 (Pa. Super. Aug. 2, 2022). 

In Mertis, the plaintiff brought medical negligence claims against an anesthesiologist who gave her nerve blocking medication during her knee surgery. Suit was filed against that anesthesiologist, the anesthesia company, and the hospital where the surgery occurred. During discovery, the plaintiff subpoenaed the surgeon, who was not a named party, for deposition. The surgeon sought counsel for the deposition from his insurer, which assigned an attorney from the same firm as the attorney representing the defendant anesthesiologist. 

The plaintiff contended that, because the surgeon’s attorney was from the same firm as the anesthesiologist’s attorney, the firm was violating Pennsylvania Rule of Civil Procedure 4003.6’s prohibition against ex parte communications with a treating physician. 

For context, Rule 4003.6, regarding “Discovery of Treating Physicians,” is designed to prevent defense counsel from communicating directly with a plaintiff’s treating physician. Under Rule 4003.6, defense counsel can seek information from a treating physician only by obtaining the party’s written consent or through formal discovery. The Rule’s aim is to avoid ex parte communications between defense counsel and the plaintiff’s physician in favor of conventional means of discovery, such as interrogatories or depositions, where all parties can participate. Essentially, the Rule is designed to prevent a defendant from obtaining information from a doctor who treated the plaintiff which the plaintiff or co-defendants and their counsel are not privy to. 

However, Rule 4003.6 does have exceptions. That is, an attorney can seek information from a treating physician who is (1) their client, (2) an employee of their client, or (3) an ostensible employee of their client. The “client exception” was specifically at issue in Mertis. The firm whose attorneys represented the anesthesiologist and the surgeon contended that, because they established an attorney-client relationship with the surgeon, their communications with the surgeon fell under the scope of the Rule 4003.6(1) client exception. 

The Pennsylvania Supreme Court ruled to the contrary. The court held that the client exception was inapplicable in this situation as the attorneys for both the named defendant and the non-party treating physician were from the same firm. Even though the defendant anesthesiologist and non-party surgeon were represented by different individual attorneys from the same firm—who entered the case at different stages and for different purposes—the court made certain that Rule 4003.6 commands a firm wide effect. Essentially, once a law firm enters for a named defendant, Rule 4003.6 prevents a different attorney within the same law firm, who was initially uninvolved in the firm’s defense of a named defendant, from representing the non-party treating physician. 

The court’s holding creates a clearly defined rule. Only with written consent from a plaintiff’s counsel can a law firm represent both a defendant and non-party treating physician. 

Although the Pennsylvania Superior Court’s 2022 decision flagged this issue, the Supreme Court’s 2024 holding solidifies this interpretation of Rule 4003.6. The practical effect of this decision is that defense firms must be aware of situations like the one in Mertis, where a non-party physician seeks, or is assigned, representation for their deposition from an attorney at a firm which already represents a named defendant. 

In a practice area where medical providers and their insurers often have existing relationships with counsel, and where non-party treating physicians could foreseeably be employed by named defendant providers who are already represented by that same counsel, this situation is by no means far-fetched. For example, the surgeon in Mertis sought an attorney for his deposition based on the attorney’s previous representation of the surgeon in an unrelated case. Those same circumstances may arise when a past client is implicated as a fact witness in a subsequent case and seeks familiar counsel for their deposition. 

In that event, the Mertis court’s holding demands that, unless the attorney obtains written consent from the plaintiff, the attorney cannot accept representation if their firm is already representing a defendant. It has now been made certain that doing so would constitute prohibited ex parte communication under Rule 4003.6. 

In conclusion, the Mertis rule is a strong warning that large defense firms, generally speaking, should not represent a non-party physician when their firm has already been retained to represent a named defendant in a medical malpractice case. The likely result? The defense firm will be disqualified. 

Daniel and Jack are members of our Health Care Department and work in our Philadelphia, Pennsylvania, office. 

 

Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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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. 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