Monday, January 11, 2016

Plaintiff's Treating Doctors May Also Be Subjected to Cooper Interrogatories

In a notable detailed Order dated January 6, 2016 in the case of Mina v. Hua Mei, Inc., No. 2012 - CV - 7781 (C.P. Lacka. Co. Jan. 6, 2016 Mazzoni, J.), Judge Robert A. Mazzoni ruled that a Plaintiff's treating physician was required to respond to Cooper Interrogatories designed to seek discovery of financial bias information from that doctor. 

In this matter, the Plaintiff alleged personal injuries as a result of a slip and fall on the defendant's premises.  Following the accident, the Plaintiff was treated, in part, by a physatrist. 

During discovery, the defense served Cooper v. Schoffstall-type Interrogatories to the Plaintiff seeking financial bias information relative to that doctor who would be called as a witness at trial by the Plaintiff.

The Plaintiff objected on the grounds the Interrogatories were inappropriate as the doctor was a treating doctor who was not retained by the Plaintiff with an eye towards litigation.  Moreover, the Plaintiff argued that, although the doctor issued a report, he did not complete an IME or records review.

Judge Robert A. Mazzoni
Lackawanna County
After reviewing Pa.R.C.P. 4003.5 and the relevant case law, Judge Mazzoni ordered the Plaintiff to respond to the Interrogatories.  The court noted that the issue of whether or not a doctor's opinions were acquired or developed in anticipation of litigation or for trial was a case-by-case determination and that the fact that the doctor was a treating physician, in and of itself, was not conclusive and did not end the inquiry.

In ruling that the bias discovery should be allowed, Judge Mazzoni looked at several factors.  It was noted that Plaintiff's counsel had requested the report from the doctor and specifically requested the doctor to include in the report his opinion on several issues related to the litigation, including the issues of causation and permanency.  This request, and the report, were written about a year before the litigation began.

Judge Mazzoni cautioned that the fact that this request was made by Plaintiff's attorney and the content of the report did not finally resolve the question presented as doctors often include their opinion on causality and prognosis in their reports.

What "tips the scales" for the court in this matter was how the doctor framed his opinion on causality.  The court emphasized that, in his report, the doctor specifically utilized the language "to a reasonable degree of medical certainty" relative to his opinion.  See Op. at p. 5.

Under the totality of the above circumstances, with the Plaintiff's attorney requesting the report, the particulars of the report, and how the causality opinion was framed, the Court ruled that the report of the doctor was generated with an "eye towards litigation."

As such, the Court ordered a number of the Interrogatories at issue to be to be answered but found some others to be overly broad and unduly burdensome.  The Court also ordered that the defendant sign a confidentiality agreement with regards to the financial background information secured with this discovery from the doctor.

Anyone wishing to review 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.

I send thanks to Attorney Kevin C. Hayes of the Scranton, PA office of Scanlon, Howley & Doherty, P.C. for bringing this case to my attention.

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