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THE TREATING PHYSICIAN: WHAT DISCOVERY CAN THE DEFENSE GET?

One of the most hotly debated subjects in personal injury litigation is the question of when and how defense counsel may obtain information from the plaintiff's treating physician. Here are some of the common questions that come up in this context, along with some suggested answers.

  1. Must the plaintiff sign a medical authorization for release of the treating physician's records?

There is no appellate decision directly on point, but one of the best known common pleas decisions was authored by Judge Wettick in Allegheny County. In Greynolds v. McAllister, 130 PLJ 414 (1982), Judge Wettick said that the plaintiff cannot be compelled to execute such an authorization. Instead the plaintiff's counsel has the option of obtaining the records and then forwarding them to the defense after redacting any irrelevant or impertinent information. If defense counsel believes that relevant information has been deleted, Greynolds provides that the plaintiff can be made to produce an affidavit describing generally the nature of the information which was withheld, and ultimately the court can decide the issue.

Obviously, the Greynolds opinion is not controlling statewide, and, therefore, the suggestion here is that one check for local decisions or custom in the jurisdiction in which your case is pending. In many instances, plaintiff's counsel will simply sign the defendant's authorization and let them obtain the records. If that is your practice, here is one cautionary note: Make sure that the authorization does not explicitly, or by implication, authorize defense counsel to have ex parte conversations with the treater.

2. Who is a "treating" physician?

Obviously, any doctor whom the plaintiff seeks out for treatment or with whom he has discussions concerning their health status is a "treating" physician. However, the well-known case of Marek v. Ketyer, 733 A.2d 1268 (Superior 1999), indicates that the term "treater" has even broader application. In Marek, a cardiologist who merely read a patient's echocardiogram, but with whom the patient had no personal contact, was deemed to be a "treating" physician. Thus, it seems safe to assume that anyone who provides medical service to the plaintiff is a "treater," even if the plaintiff never met them, never consulted with them, or never engaged in confidential discussions with them.

3. Can defense counsel engage in ex parte conversations with the treating physicians?

While there may have been some uncertainty about this question some years ago, all doubt has been removed by the adoption of Rule 4003.6, Pa. RCP and the Marek case. The rule essentially says that no information may be obtained from a treating physician except pursuant to a consent signed by the plaintiff or through an authorized means of discovery. Obviously, an ex parte contact by defense counsel does not fit into either category. Marek reinforces the all-encompassing nature of the rule by holding that the prohibition applies even where a plaintiff never had any direct contact with a physician who, unbeknownst to the plaintiff, was consulted on his/her case.

4. Can defense counsel force the treating physician to give a deposition?

The short answer to this question is "yes." The defense lawyer can subpoena or otherwise secure the attendance of the treating physician at a deposition. However, because of the prohibition on ex parte discussions, defense counsel must take the deposition "cold," i.e., without any advance knowledge of what the doctor is going to say. Whether the defendant chooses to take the deposition under those circumstances is a tactical choice that will vary from case to case.

5. Can a defendant force the treating physician to answer opinion questions at the deposition?

Definitely not. There are several cases which indicate that, even at trial, and certainly at a deposition, an opposing counsel cannot force any expert witness to answer opinion questions. See, for example, Jistarri v. Nappi, 549 A.2d 210 (Superior,1988) and Spino v. Tilley, 671 A.2d 726 (Superior 1996). The rationale for this rule is very simply that a litigant cannot force an expert witness to give up the products of their thought process. There is no getting around this rule by claiming that the doctor is being called only as a "treater" and not as an expert. To the extent the witness has specialized knowledge and counsel is seeking to obtain his impressions, the treater is an "expert."

6. Can the plaintiff prohibit the treating physician from answering opinion questions?

This is the most unsettled of all issues in this area, because it is only going to arise when plaintiff's counsel has concerns that the treater's answers might be harmful, otherwise, there is no reason to prohibit the doctor from answering such questions. In these circumstances, plaintiff's counsel can obviously express to the doctor a preference that he/she not answer opinion questions, and counsel can probably go even further and alert the physician that they do not have the patient's consent to do so. Although it is doubtful that the doctor needs the patient's consent, an admonition that consent is not given may be enough to dissuade some physicians from answering anything other than factual questions.

As to whether one can actually prevent the doctor from talking about diagnosis, prognosis, causation, etc., there is no appellate case on point and the available common pleas decisions have different approaches. For example, Papa v. Brodsky, 38 D&C 4th 136 (1998), is a Philadelphia County Common Pleas case which indicates that although the plaintiff cannot prohibit a treating physician from answering opinion questions, they can limit the testimony to those opinions which are pertinent to the doctor's treatment of the patient. Under that standard, for example, questions about whether another physician's conduct met the standard of care would be off-limits. Likewise, questions about causation might be prohibited in a given case.

In a somewhat related context, two common pleas courts have prohibited the defense from retaining the plaintiff's current or former treating physician to perform an independent medical examination on their behalf and presumably offer trial testimony. See, for example, Shea v. McCadden, 46 D&C 2d 560 (Delaware County 1969), and Freyer v. Travelers Indemnity Company, 15 D&C 3rd 649 (Westmoreland County 1980). In both instances, the court expressed concerns that the use of the plaintiff's doctor as a defense expert may violate the confidentiality between the plaintiff and his physician. Although the situations are not completely analogous, one could perhaps argue that permitting the defense to elicit opinion testimony from plaintiff's treating physician, while not specifically retaining him to do an IME, nevertheless violates physician-patient confidentiality. Obviously, the defense would respond by saying that the plaintiff waives such confidentiality when suit is filed.

Under the current state of the law, it seems that if the treater is willing to offer opinion testimony for the defense, there is little that the plaintiff can do to prohibit such testimony. Under Papa, the plaintiff may be able to limit the scope of the testimony. Beyond that, the plaintiff may have to rely on a direct appeal to the doctor that he/she not aid the patient's litigation opponent. Although that is by no means certain to succeed, plaintiff's counsel might cite some general language in the old case of Alexander v. Knight, 177 A.2d 142 (Superior 1962), in which the court condemned a treating physician who authored a report for the defense. The court said that physicians "owe their patients more than just medical care for which payment is exacted; there is a duty to aid the patient in litigation ... [and to] refuse affirmative assistance to the patient's antagonist in litigation."

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