The opinion of the court was delivered by: NEALON
Chief Judge William J. Nealon.
Approximately two weeks later, plaintiff, upon the advice of his family physician, was admitted into Mercy Hospital, Wilkes Barre, where he was treated by Victor T. Ambruso, M.D., and Yu-Song Kao, M.D. It was determined at this time that plaintiff had a fracture dislocation of his cervical spine at the C6-7 level. Surgery was performed by Dr. Ambruso.
After the initiation of this negligence action against N.P.W., Dr. Weisbaum and Dr. D'Anca, counsel for defendant D'Anca ex parte communicated with plaintiff's subsequent treating physicians, Drs. Ambruso and Kao, without notifying plaintiff or his counsel. Ambruso and Kao were subsequently listed as expert witnesses for the defendants. Plaintiff's counsel filed a motion in limine seeking to preclude defense counsel both from making further unauthorized ex parte contacts with plaintiff's former treating physicians and from calling those physicians as expert witnesses at trial.
At a pretrial conference held on December 3, 1987, plaintiff's counsel disclosed that he would voluntarily dismiss the action against Drs. Weisbaum and D'Anca and would proceed only against N.P.W. Inasmuch as counsel for N.P.W. indicated at the pretrial conference that he would attempt to conduct ex parte interviews with Drs. Ambruso and Kao and that, as noted in his pretrial memorandum, he expected to call these former treating physicians as expert witnesses at trial, plaintiff's motion in limine still must be addressed.
For the reasons set forth below, the motion in limine will be granted.
On July 1, 1984, plaintiff fell down a flight of stairs and was transported to N.P.W. Medical Center where he was examined by emergency room physicians. At N.P.W., plaintiff's neck, left shoulder and chest were x-rayed by hospital personnel, and those x-rays were later interpreted by Dr. Weisbaum. Dr. D'Anca was then called in to treat plaintiff for fractures of the left clavicle and scapula. Specifically, a figure-eight bandage and a sling were applied to plaintiff's left shoulder and arm.
Plaintiff was released from N.P.W. with instructions to contact D'Anca within a few days. After conferring with his family doctor about, inter alia, his persistent pain, plaintiff again consulted D'Anca on July 5, 1984. D'Anca took further x-rays, but the court has not been provided with any information indicating the nature or scope of these x-rays. After examining plaintiff, D'Anca directed him to return in fifteen days.
Plaintiff continued to experience pain, and on July 9, 1984, upon the advice of his family doctor, he was admitted into Mercy Hospital, Wilkes-Barre, where he was treated by Drs. Ambruso and Kao. Additional x-rays revealed a fracture dislocation of the cervical spine at the C6-7 level. On July 13, 1984, Ambruso performed an anterior cervical discectomy and fusion at the C6-7 level.
The present case was commenced on May 23, 1986. In his complaint, plaintiff claimed injuries allegedly resulting from, or exacerbated by, the delay in diagnosing and treating his spinal fracture; he asserted, inter alia, that defendants either failed to properly x-ray his cervical spine or failed to properly read their x-rays of that area. Defendants, on the other hand, have maintained that the x-rays of plaintiff's cervical spine were properly taken, that said x-rays do not reveal any abnormality and that plaintiff's injuries were not caused by the delay in diagnosing and treating his spinal fracture.
It is undisputed that counsel for Dr. D'Anca, accompanied by Dr. D'Anca, conducted an ex parte interview with Dr. Ambruso on January 17, 1987 without providing advance notice to plaintiff or his counsel. On January 28, 1987, Ambruso wrote to D'Anca's counsel, opining on this occasion that the cervical spine x-rays taken at N.P.W. adequately visualized the C6-7 level and showed no fracture, that D'Anca's treatment was appropriate and that the delay in diagnosing and treating the spinal fracture did not contribute to plaintiff's injuries in any manner.
As previously noted, counsel for Dr. D'Anca subsequently informed plaintiff's counsel that Dr. Ambruso would appear at trial as an expert witness on behalf of D'Anca. Plaintiff's counsel submitted an affidavit representing that he, through his secretary, attempted to reach Ambruso by telephone on numerous occasions in March and August of 1987. Plaintiff's counsel was advised by the physician's staff that, notwithstanding Ambruso's willingness on February 25, 1986 to provide him with further assistance if necessary, the physician now refused to meet with him.
It is further undisputed that counsel for Dr. D'Anca ex parte contacted Dr. Kao by telephone on January 6, 1987 and by letter dated January 30, 1987 without prior notice to plaintiff or his counsel. By letter to D'Anca's counsel dated June 30, 1987, Kao concluded that "the cervical spine films available to Dr. D'Anca on [July 1, 1984] were non-diagnostic of any cervical injury . . . ." See Exhibit "B" attached to document 58.
Dr. Kao was likewise listed as an expert witness who would testify at trial on behalf of the defense. Plaintiff's counsel represents that Kao has likewise failed to return several telephone calls which counsel placed to the physician's office in April and August of 1987.
Plaintiff filed the motion in limine on October 15, 1987. He seeks an order restraining defense counsel from engaging in further ex parte contacts with plaintiff's past or present treating physicians without plaintiff's prior authorization. He also requests that defendants be prohibited from calling Ambruso, Kao or any other treating physician as an expert witness at trial. The parties have thoroughly briefed the present dispute, and the court heard oral argument in chambers on November 23, 1987 and December 3, 1987.
Plaintiff's motion in limine is now ripe for disposition. The primary issue for the court's consideration is whether defense counsel in a medical malpractice case may contact, ex parte, a plaintiff's former treating physician.
A series of cases condemning unauthorized ex parte contacts has emanated out of Pennsylvania's lower courts. The seminal case is Alexander v. Knight, 25 Pa. D. & C. 2d 649 (C.P. Phil. Cty. 1961), aff'd per curiam, 197 Pa. Super. 79, 177 A.2d 142 (1962). In that decision, the court ordered a new trial on the basis of the jury's low monetary award. A side issue which bothered the court was that a representative of defense counsel, a physician, had contacted one of the plaintiff's treating physicians and had obtained a report from the doctor which was favorable to the defendant. The court in Alexander remarked:
We do not consider the . . . matter as significant in this case, but we deem it advisable to briefly refer to our view of this incident. We are of the opinion that members of a profession, especially the medical profession, stand in a confidential or fiduciary capacity as to their patients. They owe their patients more than just medical care for which payment is exacted; there is a duty of total care; that includes and comprehends a duty to aid the patient in litigation, to render reports when necessary and to attend court when needed. That further includes a duty to refuse affirmative assistance to the patient's antagonist in litigation. The doctor, of course, owes a duty to conscience to speak the truth; he need, however, speak only at the proper time. [The defense ...