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. 

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

Motion For Protective Order Granted to Protect Medically Infirm Deponent From Deposition

In his recent decision in the case of Cook v. Moses Taylor Hospital, No. 13-CV-1140 (C.P. Lacka. Co., Sept. 15, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a defense motion in a medical malpractice claim seeking to prohibit a deposition of a nurse on medical incapacity grounds and/or due to the neurological incapacity of the witness to complete a deposition as supported by medical documentation provided to the court.  

While the Court found that the information sought from the nurse witness met the standards for relevancy for discovery, the Court also noted that significant concerns were raised regarding the competency of the nurse to testify by deposition given the medical information provided to the Court regarding the nurse’s medical issues. 



Judge Terrence R. Nealon
Lackawanna County

The Court addressed the defense Motion for Protective Order under Rule 4012 and found that there were no reported Pennsylvania decisions on the point.  

After referring to some federal court decisions from within and without Pennsylvania, Judge Nealon exercised the broad discretion vested in him under Rule 4012 and ordered that the nurse would be required to submit to inquiries by written Interrogatories as opposed to a deposition.  
 
Judge Nealon indicated that he ruled in this fashion to prevent the exposure of a neurologically infirm and cognitively impaired deponent to the stress and anxiety of an uncertain deposition while still considering the right of the Plaintiff to exhaust her ability to obtain discoverable information to alternative means.  

 

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Judge Terrence R. Nealon of Lackawanna County Addresses Parameters of Protective Order Relative to Depositions

In his recent decision in the case of Arvonio v. PNC Wealth Management, No. 11 - CV - 478 (C.P. Lacka. Co. Dec. 20, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the parameters of a proper protective order requested under Pa.R.C.P. 4012 with respect to depositions.

In applying Pa.R.C.P. 4012 in Arvonio, the court took a middle road and allowed the depositions to go forward but limited scope of the deposition to certain pertinent issues that were at the forefront of the current status of this case.

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