A defendant’s answer does not “open the door” to privileged communications

The plaintiff averred in her complaint that an anesthesiologist who performed a pre-surgical evaluation of the decedent was impaired by alcohol at the time of his consult. The anesthesiologist specifically denied that he suffered from any condition that affected his ability to provide appropriate care to the decedent. The issue on appeal was whether this specific denial in his answer constituted an offer of testimony for purposes of allowing privileged documents regarding alcohol and drug abuse patient records to become discoverable.

The Superior Court found that the anesthesiologist’s answer did not qualify as an offer of testimony that would trigger the inquiry into alcohol or drug abuse records. The Superior Court noted that, under Pennsylvania procedural law, an answer must state the material facts that constitute the defense to a plaintiff’s claim. Furthermore, a defendant’s answer is not the same as a plaintiff’s complaint because a defendant does not commence the litigation. Therefore, a plaintiff can still waive confidential communications by averments in his or her complaint.

Accordingly, this opinion makes clear that a specific answer should not waive any communications privilege maintained by a defendant; however, the same does not hold true for a plaintiff’s complaint. Therefore, any factual averments made by the plaintiff can still be utilized in an argument that the plaintiff has waived privilege.

_{Case Law Alerts, 3rd Quarter, July 2015}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin 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. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}