Friday, October 8, 2010

Lackawanna County Judge Nealon Rules on Discovery From "Treating Physician"

The trial in the personal injury claims of neurosurgeon, Dr. David J. Sedor, and his wife, against the Community Medical Center, Sky Medical, LLC, and Sky Orthopaedics, et.al., No. 05 CV 2143 (Lacka. Co. Nealon, J.) ended late last week in the Lackawanna County Court of Common Pleas before Judge Terrence R. Nealon.

Prior to the commencement of this trial, the Court issued a September 21, 2010 Opinion and Order denying the Plaintiffs’ Motion In Limine to preclude expert testimony by Seth Braunstein, M.D. was denied.

This case arose out of an incident during which a noted local neurosurgeon was struck by a hospital bed as it was being pushed through a hallway of a hospital by an orderly and another person. The Plaintiff, Dr. Sedor, alleges that his injuries from this incident, and the associated infections, unfortunately required him to eventually under a mid-thigh amputation of his right leg.

With regards to the Motion In Limine noted above, the Plaintiffs based their pre-trial motion upon Pa. R.C.P. 4003.6 which provides that, unless a Plaintiff’s treating physician is the attorney’s client or an actual or ostensible employee of the attorney’s client, “[i]nformation 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.”

Under this Rule of Civil Procedure, if a party or an attorney privately contacts a Plaintiff’s treating physician and secures information in violation of this ban against ex parte communications, Rule 4003.6 provides a basis for precluding the culpable party or attorney from utilizing any improperly obtained information at trial.

The Defendants in this matter, in support of their medical causation argument, retained a Dr. Seth M. Braunstein of PENN Rodebaugh Diabetes Center to contest whether or not the Plaintiff’s ultimate need for an amputation of a leg related back to the subject incident or to an improper treatment of the Plaintiff’s type II diabetes.

The Plaintiffs pointed out, during the course of the Plaintiff’s treatment, the amputation procedure was performed at the hospital of the University of Pennsylvania, during which time the Plaintiff’s diabetic condition was treated by an endocrinologist who were affiliated with the PENN Rodebaugh Diabetes Center.

Although the Plaintiff did not specifically allege that Dr. Seth Braunstein personally treated the Plaintiff, the Plaintiff asserted that it was “probable” that all of the endocrinologists at the PENN Rodebaugh Diabetes Center, including Dr. Braunstein, were involved in or participated in his care and that it was “likely” that Dr. Braunstein had some contact with this colleagues regarding Dr. Sedor and his treatment.

The Defendants denied that Dr. Braunstein ever treated Dr. Sedor or billed him for any services or was otherwise in any way involved in Dr. Sedor’s care.

In his Opinion, Judge Terrence R. Nealon, reviewed the applicable case law as well as an article he himself had previously written on the topic that appeared in the Barrister magazine, and concluded that, under Pennsylvania law, “[a]lthough it is not necessary for the physician to physically touch or personally meet the patient in order to qualify as a “treating physician” under Rule 4003.6, some form of a physician-patient relationship must exist between the Plaintiff and the medical witness for the protection provided by the Rule to be applicable.”

Turning to the facts at case at hand, Judge Nealon found that Dr. Braunstein was not involved with Dr. Sedor’s treatment and there was no indication that Dr. Braunstein had ever officially, or even informally, and consulted by another other PENN Rodebaugh Diabetes Center doctor who treated Dr. Sedor.

Since there was no evidentiary basis upon which to find Dr. Braunstein to be a “treating physician” of Dr. Sedor under Rule 4003.6, the ex parte prohibition set forth in that Rule was found to be inapplicable to Dr. Braunstein in this case. As such, the Plaintiff’s Motion to Preclude the Expert Testimony of Dr. Seth Braunstein was denied.

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.

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