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

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.

*Dan is an associate in our Philadelphia, Pennsylvania, office. He can be reached at 267.519.6574 or dedolente@mdwcg.com.

_{Defense Digest, Vol. 28, No. 12, December 2022, 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. © 2022 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.}