Thursday, October 1, 2015

Motion For Protective Order Granted to Protect Medically Infirm Deponent From Deposition

In his recent decision in the case of Cook v. Moses Taylor Hospital, No. 13-CV-1140 (C.P. Lacka. Co., Sept. 15, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a defense motion in a medical malpractice claim seeking to prohibit a deposition of a nurse on medical incapacity grounds and/or due to the neurological incapacity of the witness to complete a deposition as supported by medical documentation provided to the court.  

While the Court found that the information sought from the nurse witness met the standards for relevancy for discovery, the Court also noted that significant concerns were raised regarding the competency of the nurse to testify by deposition given the medical information provided to the Court regarding the nurse’s medical issues. 

Judge Terrence R. Nealon
Lackawanna County
The Court addressed the defense Motion for Protective Order under Rule 4012 and found that there were no reported Pennsylvania decisions on the point.  

After referring to some federal court decisions from within and without Pennsylvania, Judge Nealon exercised the broad discretion vested in him under Rule 4012 and ordered that the nurse would be required to submit to inquiries by written Interrogatories as opposed to a deposition.  
Judge Nealon indicated that he ruled in this fashion to prevent the exposure of a neurologically infirm and cognitively impaired deponent to the stress and anxiety of an uncertain deposition while still considering the right of the Plaintiff to exhaust her ability to obtain discoverable information to alternative means.  


Anyone wishing to review this decision, may click this LINK.

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