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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

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.