Mertis, B. v. Dong-Joon, M.D.

J-S21042-22

2022 PA Super 128

BOBBI ANN MERTIS : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

DONG-JOON OH, M.D., NORTH : No. 1547 MDA 2021

AMERICAN PARTNERS IN :

ANESTHESIA (PENNSYLVANIA), LLC, :

WILKES-BARRE HOSPITAL COMPANY, :

LLC D/B/A WILKES-BARRE GENERAL :

HOSPITAL AND COMMONWEALTH :

HEALTH :

Appeal from the Order Entered October 28, 2021

In the Court of Common Pleas of Luzerne County Civil Division at No(s):

201709655

BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED AUGUST 02, 2022

Bobbi Ann Mertis (Mertis) appeals from the order entered in the Court

of Common Pleas of Luzerne County (trial court) denying her motion to

disqualify the law firm representing anesthesiologist Dr. Dong-Joon Oh (Dr.

Oh) in this medical malpractice case. The case involves Pa.R.C.P. 4003.6,

which deals with how information can be obtained from a treating physician.

It 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

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* Retired Senior Judge assigned to the Superior Court.

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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.

Pa.R.C.P. 4003.6.(1)-(3) (emphases added).

The issue in this case is simple: can a law firm representing the

defendant have ex parte communications with a non-party treating physician

without violating Pa.R.C.P. 4003.6? Because such ex parte communications

are not permitted under this Rule, we reverse and remand the matter to the

trial court.

I.

A.

The relevant facts and procedural history of this case are 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 &

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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.

B.

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.

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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.).

In April 2021, Mertis filed a motion for sanctions to disqualify defense

counsel from representing defendants and preclude further ex parte

communications with plaintiff’s treating physician. Mertis sought that Scanlon

Howley be disqualified from the litigation for violating Rule 4003.6 because of

its numerous unauthorized communications with Dr. Kim. At oral argument,

Attorney Hayes maintained 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.” (N.T. Hearing, 8/04/21, at 10-11).

After considering the parties’ briefs and argument, the trial denied the

motion for disqualification and sanctions. In finding that there had been no

violation of Rule 4003.6, the trial court explained:

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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).

Mertis timely appealed and she and the trial court complied with Rule

1925. See Pa.R.A.P. 1925(a)-(b).1

II.

A.

On appeal, Mertis contends that Scanlon Howley should have been

disqualified from serving as counsel in this litigation because it violated the

Rule 4003.6 prohibition on the defendant having ex parte communications

with Mertis’s treating physician, Dr. Kim. According to Mertis, Rule 4003.6

must be construed narrowly, none of its enumerated exceptions are applicable

to this case, and that the exceptions apply only in instances where the treating

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1 An order denying a motion to disqualify a law firm from a litigation is

immediately appealable as a collateral order. See Rudalavage v. PPL Elec.

Utilities Corp., 268 A.3d 470, 478 (Pa. Super. 2022); see also Pa.R.A.P.

313 (governing collateral orders).

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physician is a named defendant or the employee/representative of a named

defendant. (See Mertis’s Brief, at 26-27, 29). Mertis further maintains that

Scanlon Howley’s communications with Dr. Kim run contrary to the spirit of

Rule 4003.6 and create “ample potential for continued mischief” and the

opportunity for “defense counsel to have gained knowledge from Dr. Kim via

improper discovery and then shared that knowledge with Defendant Oh and

vice versa.” (Id. at 33-34).2

Rule 4003.6 sets forth the general rule prohibiting ex parte

communications between opposing counsel and a party’s treating physician.3

The Rule implicitly recognizes the privacy interest underlying the physician-

patient relationship and the physician’s duty of loyalty to the patient. See

Marek v. Ketyer, 733 A.2d 1268, 1270 (Pa. Super. 1999), appeal denied,

749 A.2d 471 (Pa. 2000). Under the Rule, opposing counsel may only obtain

information from a party’s treating physician by securing the written consent

of the party or through an authorized method of discovery such as written

interrogatories, requests for production of documents or by way of deposition.

See id.; see also e.g., Rules 4004(a), 4007.1(a), 4009.21. These

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2 When reviewing a trial court’s order regarding disqualification of counsel, we

employ a plenary standard of review. See Rudalavage, supra at 478. To

the extent that Mertis’s arguments involve interpretation of our Rules of Civil

Procedure, our standard of review is de novo. See Brown v. Quest

Diagnostics Clinical Labs., Inc., 209 A.3d 386, 389 (Pa. Super. 2019).

3We interpret our Rules of Civil Procedure in conformity with rules of grammar

and according to their common and approved usage. See Pa.R.C.P. 103(a).

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procedures protect both the patient and the physician by ensuring that

adverse counsel will not abuse the opportunity to contact or interrogate the

physician privately. When this type of “formal discovery is undertaken in the

presence of a patient’s counsel it can be assured that irrelevant medical

testimony will not be elicited and confidences will not be breached, preserving

the trust which exists between doctor and patient.” Marek, supra at 1270

(citation omitted).

B.

Rule 4003.6 carves out three exceptions applicable in circumstances

where counsel must be permitted to confer privately with his own client or the

actual or ostensible employees of his client who were involved with the

plaintiff’s care and treatment. The exception relevant here is subsection (1),

which provides that the Rule does “not prevent an attorney from obtaining

information from (1) the attorney’s client . . . .” Pa.R.C.P. 4003.6(1). Simply,

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

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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. Accordingly, we reverse the trial court’s

determination that Pa.R.C.P. 4003.6 was not violated.

With regard to Mertis’s claim that disqualification of Scanlon Howley

from this litigation is necessary for its violation of this discovery Rule, we are

mindful that this remedy is warranted under limited circumstances. See

Rudalavage, supra at 478 (citation omitted). Specifically, disqualification is

appropriate only when “another remedy for the violation is not available and

it is essential to ensure that the party seeking disqualification receives the fair

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trial that due process requires.” Id. (citation omitted). We remand to the

trial court to determine the appropriate remedy in light of Appellee’s violation

of Pa. R.Civ. Pro. 4003.6

Order reversed. Case remanded for proceedings consistent with this

Opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/02/2022

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