Monday, November 19, 2012

Pennsylvania Superior Court Limits Scope of Discovery on Defendant Doctor's Prior Surgeries

In its recent decision in the case of Buckman v. Verazin, 2012 Pa. Super 216 (Pa. Super Oct. 5, 2012 Stevens, P.J., Bender, J. and Gantman, J.) (Opinion by Bender, J.), the Pennsylvania Superior Court reversed a discovery order issued by the trial court in a medical malpractice case pertaining to the production of prior records regarding similar surgeries performed by a defendant surgeon.

This medical malpractice action against the medical providers arose after treatment in the form of a surgery identified as a sigmoid colectomy and colostomy. During the deposition of the surgeon, the surgeon described tailoring the surgery to the Plaintiff’s particular physique.

After that deposition, the Plaintiffs served additional written discovery upon the Defendant’s requesting additional information and any and all medical records pertaining to prior similar surgery performed by the same surgeon in the five (5) years before the Plaintiff’s surgery. The Defendants objected to this written discovery request. The Plaintiffs responded with a Motion to Compel and this issue worked its way up to the Superior Court.

The Plaintiffs argued that the five (5) prior years of surgical records were necessary to determine the surgeon’s experience with the specific procedure at issue as well as his technique in performing the surgery given the Plaintiff’s allegations that the surgeon’s technique was negligent. The Plaintiffs also argued that all of the surgeon’s surgical records from the very date of the Plaintiff’s surgery should be discoverable to establish a time line of events for the surgeon for that particular day.

The defense countered that the requested information was highly embarrassing, privileged, protected from discovery by federal and state law, the records were not probative of any negligence theory asserted against the surgeon, and the records did not support the Plaintiff’s efforts to impeach the surgeon. Other Defendants raised the issue of physician/patient privilege and violations of the other patients' rights to privacy.

The Superior Court initially noted that the Order involving discovery was not a final Order and was, therefore, not appealable. However, the Superior Court deemed the Order to be appealable in this scenario as a collateral Order under Pa. R.A.P. 313(b).

After reviewing the pertinent law on the issues presented, the Pennsylvania Superior Court ultimately ruled that the request for information related to third party who had not given their consent was an improper request for confidential information that was not relevant to the instant negligence claims.

The court also found that actions taken by the surgeon when operating on other patients was not probative of what his actions were when caring for the Plaintiff in this matter.

The Court also noted that, to the extent the Plaintiffs were seeking the other operative reports in order to impeach the Defendant surgeon, the Court noted that impeachment could be accomplished by other, less intrusive means such as through the testimony of another doctor or by way of questions asked to the physician himself about his prior cases.

The Court in this matter additionally found that the Plaintiff collateral evidentiary interest was outweighed by the need for confidentiality of the records of third parties who had not given their consent and who had a right to privacy with respect to their medical records.

Accordingly, the Pennsylvania Superior Court reversed the trial court’s granting of the Plaintiff’s Motion to Compel.

Anyone desiring a copy of this decision may contact me at

I send thanks to William Acquilino, Esq. of the Perry Law Firm in Scranton, Pennsylvania for advising me of this decision.

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