Friday, January 22, 2016

Judge Nealon of Lackawanna Addresses Parameters of Discovery of a Defendant Doctor's Opinions in a Med Mal Case

In his recent decision in the case of Karim v. Reedy, No. 2011-CV-4598 (C.P. Lacka. Co. Jan. 11, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed discovery issues pertaining to the parameters of a deposition of a Defendant doctor and a Defendant hospital’s nurse.  The issues surrounded a Plaintiff's attorney's demand that the witnesses answer certain questions that their counsel instructed them not to answer during the course of their depositions in the medical malpractice matter.  

The deponents contended that their opinions, including those related to the standard of care which govern their conduct, cannot be discovered without their consent, and that, to the extent that any such opinions are subject to discovery, those opinions should be restricted their evaluation of the labor and delivery issues at the time they provided their care, rather than their retrospective or current assessment of those matters.  

These Defendants also asserted that, if they stipulated that they would not address these standard of care issues during the trial testimony, their opinions in that regard could not be discovered.  

Judge Nealon rejected these contentions and ordered the Defendant doctor and nurse to submit to a second deposition to answer the questions presented.  

In so ruling, Judge Nealon wrote in his thorough Opinion that the Pennsylvania Rules of Civil Procedure and controlling precedent generally provided that medical malpractice Plaintiffs are permitted to discover the past and present opinions of a Defendant and a Defendant’s agent concerning the health care treatment at issue.  

The Court also noted that, although a malpractice Defendant’s opinion testimony regarding the negligence of another Defendant may not be introduced at trial without the malpractice Defendant’s consent, that opinion nevertheless remains discoverable.  Judge Nealon further indicated that there was no Pennsylvania law uncovered that granted a party the right to withhold from discovery that party’s relevant opinions. 

Nor did the court find any law to provide support for a malpractice Defendant’s ability to prevent the discovery of those opinions, including opinions addressing the standard of care, by agreeing not to disclose those opinions at trial.  

On another issue, the Court also found that the doctor’s prior depositions in medical malpractice litigation may be discovered in the current case as such depositions may contain medical opinions that are relevant to the doctor’s care in the present case, or may furnish grounds for impeachment.  

I send thanks to Reporter Ben Seal of the Pennsylvania Law Weekly for bringing this case to my attention.

Anyone desiring a copy of this decision may click this LINK.

To view a January 19, 2016 Pennsylvania Law Weekly article by Ben Seal entitled "Trial Court Opinions Clarify Ability to Question Doctors" which covers this case, click this LINK.  If you cannot access the article via the Link, please let me know and I will email you a copy.

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