In many personal injury claims, part of the plaintiff s burden of proof is to establish a medically diagnosed injury as a result of the negligence of a defendant by way of medical expert testimony. In most typical situations, the plaintiff’s counsel seeks to rely on the plaintiff’s treating physician in order to obtain such opinions. However, the majority of the time, the treating physician is simply treating the patient and does not correctly comment in his medical records about the cause of those injuries. As such, plaintiff’s counsel is required to write to the treating physician to request an opinion concerning the causal connection between the accident and the injuries. In many instances, defendants have tried to utilize this written communication to show prejudice or back door conversations between plaintiff’s counsel and the treating physician when presenting a case to a jury. The Pennsylvania Superior Court has issued a very good decision determining that this type of communication is no longer discoverable for defense purposes.
In the case of Barrick v. Holy Spirit Hospital, on November 23, 2011, the Pennsylvania Superior Court issued a decision exactly on this issue. In that instant matter, the plaintiff had brought suit against the hospital for a chair that collapsed underneath him and caused him to sustain injury. The defense counsel had submitted a subpoena to the plaintiff’s treating physician requesting any and all records including written communications between plaintiff’s counsel and the doctor. The plaintiff objected to that discovery and the matter ended up with the Pennsylvania Superior Court.
In Barrick, the Superior Court of Pennsylvania analyzed the Pennsylvania Rules of Civil Procedure to determine the extent of admissibility of communications between legal counsel and non-party witnesses used as experts at trial. The Pennsylvania Superior Court concluded that the Pennsylvania Rules of Civil Procedure do not allow discovery of communications, whether written or verbal, between legal counsel for a party and a treating physician. Specifically, Pennsylvania Rule of Civil Procedure 4003.5 (a)(1) only requires an opposing party’s expert to state the substance of the facts and opinions to which the expert is expected to testify and to summarize the grounds for that opinion. Any discovery requests for information beyond the boundaries of that clear, explicit and succinct statement, are impermissible under the Rules. Thus, the Superior Court concluded that the content of any correspondence between an opposing party’s attorney and the expert witness retained by the party, falls outside the express language of Rule 4003.5 (a) (1).
The Superior Court went on to say that there are exceptions to the Attorney Work Product Doctrine which would preclude the discovery of this evidence. However, merely alleging that the information sought, namely communications between the lawyer and doctor and/or expert, are relevant to the underlying matter, is not sufficient. Rather, in order to obtain this information, the person seeking the information must be establish that the information is directly relevant to the underlying action and not simply related to the subject matter. Thus, the Superior Court determined that written communication between counsel and an expert witness retained by counsel is not discoverable under the Pennsylvania Rules of Civil Procedure.
This is a very important protection that has been re-established by the Pennsylvania Superior Court. Often times a plaintiff’s treating physician is simply treating a plaintiff’s condition and has not made comments about what caused that condition. As such, it becomes important that plaintiff’s counsel speak with the treating physicians to determine whether injuries are, in fact, related. This decision now protects those communications.