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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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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. 

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

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Result

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Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

Thought Leadership

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Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Thought Leadership

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Thought Leadership

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A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.