Medical Malpractice; Pa. R.C.P. 4003.6; Opposing Counsel’s Ex Parte Communications with a Party’s Treating Physician

Mertis v. Oh, 289 A.3d 532 (Pa. Super. 2022), allocatur granted Mar. 22, 2023, appeal docket 31 MAP 2023

In this case, the Supreme Court will consider whether a law firm representing the defendant can have ex parte communications with a non-party treating physician without violating Pennsylvania Rule of Civil Procedure 4003.6, which provides:

Rule 4003.6. Discovery of Treating Physician  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.

Slip op. at 1-2, quoting Pa.R.C.P. 4003.6.(1)-(3) (emphasis added by Superior Court).

Superior Court summarized the facts and procedural history as follows:

On August 17, 2015, Mertis underwent knee surgery at Wilkes-Barre General Hospital performed by orthopedic surgeon Dr. Eugene Kim (Dr. Kim).  At the beginning of the procedure, Dr. Oh administered a femoral nerve block to anesthetize Mertis’s knee area, which she maintains was performed negligently.  On August 16, 2017, Mertis filed a complaint against Dr. Oh and the above-captioned defendants claiming that she suffered a femoral nerve injury during the nerve block procedure that left her disabled with persistent weakness, numbness and pain in her left leg.  Dr. Oh retained Attorneys James Doherty and Grace Doherty Hillebrand from the law firm Scanlon, Howley & Doherty, P.C. (Scanlon Howley) to represent him and they entered their appearance on behalf of Dr. Oh and his employer, North American Partners in Anesthesia, LLC (NAPA) in April 2018.

In July 2020, Mertis subpoenaed Dr. Kim to appear at a discovery deposition on August 31, 2020.  Although Dr. Kim is not a named defendant in this action, some of the allegations in the complaint are critical of his care.  (See Second Amended Complaint, at ¶¶ 30, 35) (alleging that Dr. Kim did not identify an anesthetic plan for the procedure or warn Mertis of the risks associated with the femoral nerve block).  We note that any action against Dr. Kim is not possible because it is outside the two-year statute of limitations period for negligence actions.  See 42 Pa.C.S. § 5524(2). Scanlon Howley had represented Dr. Kim in a previous medical malpractice action, and when he received the subpoena for the deposition in this case, he asked his professional liability insurer to assign Kevin Hayes, Esq. of Scanlon Howley to represent him.  The law firm advised Dr. Kim that it was already representing Dr. Oh and he signed a waiver of any potential conflict of interest.  Attorney Hayes wrote a letter to counsel for Mertis, Angelo Theodosopoulos, Esq., on August 28, 2020, advising that he represented Dr. Kim and requesting a change in the deposition date as he was unable to attend.  Attorney Theodosopoulos did not contact Attorney Hayes at that time and Dr. Kim’s deposition was not rescheduled.

Approximately six months later, on February 8, 2021, Attorney Theodosopoulos sent a letter to Scanlon Howley expressing his surprise that Attorney Hayes was representing Dr. Kim and his position that the “firm has a clear conflict in continuing to represent the defendant anesthesiologist and plaintiff’s treating orthopedic surgeon.”  (Letter from Attorney Theodosopoulos to Scanlon Howley, 2/08/21).  Attorney Theodosopoulos also advised that “your law firm was never authorized to contact and speak to Dr. Kim.”  (Id.).

Slip op. at 2-3. Mertis filed a motion for sanctions and to disqualify Scanlon Howley from representing the defendants and preclude further ex parte communications with Mertis’s treating physician.  Mertis argued that Scanlon Howley should be disqualified because it violated the Rule 4003.6 prohibition on the defendant having ex parte communications with Mertis’s treating physician, Dr. Kim. Scanlon Howley Attorney Hayes countered that:

… he acted squarely within the first exception to Rule 4003.6 because “[Dr. Kim] reached out to me. . . .  Dr. Kim sought the representation of me in response to the subpoena he received in this case which compelled him to appear for a deposition.  Rule 4003.6 was not only intended to protect patient’s rights of the Plaintiff, but also the rights of Dr. Kim to have representation at a deposition in the case where his treatment has been impugned.”

Slip op. at 4. The trial court found that Pa.R.C.P. 4003.6 was not violated and denied Mertis’s motion for disqualification and sanctions, reasoning that:

Plaintiff has offered nothing more than unfounded accusations and conclusions concerning the nature and extent of Mr. Hayes’ communications with Dr. Kim and Mr. Hayes’ involvement in the defense of Dr. Oh.  There is no evidence to suggest that Attorney Hayes was ever involved in the representation of Dr. Oh or that Grace or James Doherty had any communications with Dr. Kim or were involved in the representation of Dr. Kim in any way.  ‘

Counsel for Dr. Oh did not seek out Dr. Kim to communicate about the Plaintiff.  Rather, upon service of the subpoena to attend and testify at a deposition, Dr. Kim asked his insurance carrier to appoint Mr. Hayes to represent him for the deposition.  (Trial Court Opinion, 2/17/22, at 4-5).

Slip op. at 5. Mertis appealed to Superior Court.

Superior Court reversed the trial court and held that Scanlon Howley’s ex parte communications with Mertis’s treating physician violated Pa. R.C.P. 4003.6 and that the exception under 4003.6(1) did not apply, reasoning that:

Scanlon Howley contends that it is allowed to have ex parte communications with Dr. Kim because he is now its client.  There is no doubt that under this exception, if the firm only represented Dr. Kim, ex parte communications would be permitted.  There is also no doubt that if it only represented Dr. Oh, such ex parte communications would not be permitted.  Scanlon Howley, however, represents both, something that the Rule never envisioned. What Pa.R.C.P. 4003.6 envisioned is that a different law firm would represent the treating physician, not the same law firm which makes that exception inapplicable.  Moreover, to allow Scanlon Howley to represent treating physician Dr. Kim in deposition testimony, while at the same time representing Dr. Oh, is the same as having ex parte communication.  To do so would give the defense access to information that can only be obtained otherwise through authorized discovery that would be limited to material and pertinent information preventing breach of the confidential doctor/patient relationship only to the extent necessary. Just because Dr. Kim requested through his insurance carrier that Mr. Hayes be appointed to represent him based on his experience with Scanlon Howley in a previous medical malpractice litigation does not excuse compliance with the Rule.  While Dr. Kim’s choice of representation should be afforded appropriate deference, that deference does not extend where it has the effect of violating the Rule that ex parte communications are forbidden between the defendant and the plaintiff’s treating physician except in accordance with the Rule.

Slip op. at 7-6.

The Pennsylvania Supreme Court granted allocatur to consider the following issue:

Whether, in an issue of first impression and significant public importance, Pa.R.C.P. 4003.6(1) expressly permits defense counsel in a medical malpractice case to speak with plaintiff’s treating physicians outside the discovery process in circumstances where: (i) Pa.R.C.P. 4003.6(1) expressly allows defense counsel to communicate directly with treating physicians who are firm clients; and (ii) both treating physicians are clients of the law firm in question[.]


For more information, contact Kevin McKeon or Dennis Whitaker.