Wednesday, February 5, 2020

Protective Order Relative to Defendant Surgeon's Deposition Denied in Medical Malpractice Action

In the case of Freas v. Aziz, No. GD - 004285, 1334 WDA 2019 (C.P. Allegh. Co. Oct. 30, 2019, Hertzberg, J.), the court issued a Rule 1925 Opinion to explain to the Superior Court why it denied a Motion for a Protective Order to shield a Defendant surgeon from providing deposition testimony in a medical malpractice case. The court noted that the Motion for a Protective Order had been denied because the Motion simply stated that the surgeon could not participate due to a medical condition and did not make a particularized fact-intensive showing of the need for such an Order.

The trial court noted that the Defendant surgeon provided a brief letter from another doctor who advised that the Defendant surgeon’s “medical condition does not permit him to participate in any depositions and/or give deposition testimony.” No further details were provided in the letter or in the motion as to why the surgeon could not participate in a deposition. 

According to the Opinion, the trial court had issued an Order deferring a final ruling on the Motion for Protective Order regarding the surgeon until a deposition had been completed of the other doctor who provided the letter, that other doctor providing his medical records on the Defendant surgeon, and the Defendant surgeon undergoing an independent medical examination relative to the Motion.

Overall, the trial court asserted that the Defendant’s vague explanation as to why the doctor could not participate in a deposition due to a medical condition failed to meet the standards for the entry of a protective order. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 17, 2019).

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