Disqualification of defense counsel warranted where counsel contacted treating physician in violation of civil procedure rule.

Law Reporter
September, 2000

Jakobi v Ager, No 3125 (PA, Phila. County C.C.P., July Term 1998 Mar. 7, 2000).

A Pennsylvania trial court held that disqualification of defense counsel was warranted where counsel contacted a treating physician in violation of a civil procedure rule limiting communications with a treating physician to filed discovery.

Here, a patient committed suicide shortly after beginning psychiatric treatment. The executor of the patient's estate sued the treating physicians for medical negligence. During discovery, counsel for one of the defendants contacted a doctor who had previously prescribed anti-anxiety medication to the patient. Plaintiff moved to preclude the information and have defense counsel disqualified, claiming that the communication was a violation of Pa.R.Civ.P. 4003.6.

Granting the motion in part, the court noted that Rule 4003.6 was designed to codify reasonable limitations upon defense counsel's communications with a treating physician. The rule strictly limits these communications to filed discovery. The purpose behind the rule is to preclude a treating physician from acting in an adverse capacity to a patient, while protecting the right of defendants and the court to obtain full access to truthful testimony concerning the patient's past care.

The court rejected defendant's argument that although a violation of the rule occurred here, defense counsel should not be sanctioned because the substantive discussion was brief and the attorney who spoke with the doctor was barred from further participation in the case. Based on the doctor's affidavits in support of plaintiff's motion, the court found, the extent of the substantive conversation was more than brief. Thus, sanctions are appropriate because defense counsel may not be permitted to benefit from its violation.

The court observed that sanctioning a violation of this rule means balancing between plaintiff's right to maintain the confidentiality of a medical relationship and the sanctity-of-truth finding at trial, including the rights of codefendants who took no part in violating the rule. The other defendant involved in the case should not be punished or hampered by the activities of this defense counsel, the court said. Therefore, preclusion of the doctor's testimony is inappropriate. Disqualification of defense counsel, however, is an effective punishment. It will fully protect the legitimate rights of plaintiff to the confidentiality of the treating physicians relationship and the rights of co-counsel to crucial defense testimony while precluding defendant from receiving any benefit from his counsel's violation, the court concluded.

Plaintiff's Counsel
Daniel J. Mann, Philadelphia, PA