Monday, January 6, 2020

Judge Nealon of Lackawanna County Addresses Proper Scope of Deposition Questions to a Medical Malpractice Defendant Doctor


Should a Defendant physician in a medical malpractice case be required to answer questions regarding the standard of care applicable to the treatment she or he provided?

That was the issue decided by Judge Terrence R. Nealon in the case of Howarth-Gadomski v. Henzes, No. 18-CV-2585 (C.P. Lacka. Co. Nov. 27, 2019 Nealon, J.).

According to the Opinion, a Defendant physician’s attorney refused to permit the physician to answer questions at a deposition seeking the doctor’s medical opinions, including those related to the applicable standard of care.

The Plaintiff filed a motion seeking to compel the doctor to answer those questions during a second deposition.

In opposition, the Defendant physician asserted that he cannot be compelled “to testify against himself,” and asserted that the Plaintiff must present their own expert testimony to address the standard of care.

The Plaintiff countered the argument that, under Pa. R.C.P. 4003.1(c), it is not a ground for objection to any discovery inquiry that the information sought involves an opinion.

The court ruled that no Pennsylvania statute, rule, or appellate authority entitles a medical malpractice Defendant/deponent to refuse to answer questions soliciting medical opinions, including those regarding the standard of care.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon noted that the explanatory comments to the Rules of Civil Procedure 4003.1, 4003.5, along with Pennsylvania case law, support the proposition that a party deponent may not object to deposition questions on the basis that they seek opinion testimony. Those rules also confirm that a Defendant-physician need not author a pre-trial expert report since any Plaintiff may discover that party’s opinions at a deposition.

As such, the court in this matter granted the Plaintiff’s Motion to Compel the Defendant physician to attend a second deposition. The court also ordered the Defendant physician to answer medical opinion and standard of care questions.

The court did note that, during the second deposition, defense counsel may direct the Defendant-physician not to answer a specific question only if that instruction is necessary to assert and protect a recognized privileged, to enforce and evidentiary limitation established by any earlier court rulings in this case, or to present a Motion for a Protective Order based on the grounds allowed under Pa. R.C.P. 4012(a).

In this decision, the court also noted that, if the Defendant-physician and his attorney chose to discuss the subject matter of this malpractice care during any recess of the deposition, the questioning attorney may discover whether such a conversation occurred, but may not further question the deponent concerning the contents of that discussion.

Anyone wishing to review a copy of this decision may click this LINK.

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