Trial Court Refuses To Allow Defense Counsel to Attend Neuropsychological IME

In the case of Healey v. Scranton Hospital Company, LLC, No. 2023-CV-1793 (C.P. Lacka. Co. Oct. 2, 2024 Nealon, J.), Judge Nealon ruled, in a medical malpractice case that a defense attorney is not permitted to attend a neuropsychological examination that the defense had scheduled for a Plaintiff.

The court found that Pa. R.C.P. 4010, regarding physical and mental examinations in civil litigation matters, only grants the Plaintiff’s counsel the right to attend such an examination of the Plaintiff.

Judge Nealon noted that, “if the Supreme Court of Pennsylvania deemed it appropriate or necessary for defense counsel to have a corresponding right to attend a Rule 4010 examination, it could have stated so” in the Rule.

Given that Rule 4010 does not reference any right for a defense counsel to attend a medical examination set up for litigation purposes, Judge Nealon denied the defense motion in which the defense sought permission to attend the examination.

In his Opinion, Judge Nealon also cautioned that it would be inappropriate for a plaintiff's attorney interfere with the examination or obstruct the doctor's interview of the plaintiff, sanctions could be warranted.  The Judge also cautioned that, if the plaintiff's attorney acted inappropriately at the examination, the plaintiff's attorney even ran the risk of being disqualified from continuing as counsel for the plaintiff based upon the advocate-witness rule in Rule 3.7 of the Rules of Professional Conduct.

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

I send thanks to Attorney Bruce Zero of the Scranton, PA law firm of Powell, Zero & Mundy for bringing this case to my attention.