might be the next person to be sued, and other topics which might influence the treating physician's views. The potential for impropriety grows even larger when defense counsel represents the treating physician's own insurance carrier and when the doctor, who typically is not represented by his personal counsel at the meeting, is unaware that he may become subject to suit by revealing the plaintiff/patient's confidences which are not pertinent to the pending litigation.
Counsel for Dr. D'Anca adamantly denies that any unethical or improper conduct took place during his communications with Drs. Ambruso and Kao. Counsel for Dr. D'Anca enjoys an excellent professional reputation, and the court has been presented with no allegations or evidence which would cause it to question defense counsel's summary of the events surrounding the conversations in question. Nonetheless, any unauthorized ex parte contact between defense counsel and a plaintiff's treating physician violates the public policy enunciated in the Alexander line of cases. Moreover, on the issue of unauthorized ex parte conferences, this court prefers a general standard applicable in all cases rather than a rule requiring the court in each instance to examine the ex parte meeting in order to determine if the plaintiff has been unfairly prejudiced thereby.
In view of (1) the Alexander line of cases, (2) decisions from outside Pennsylvania such as Petrillo v. Syntex Laboratories, Inc., supra, and Stempler v. Speidell, supra, and (3) the rationale supporting the prohibition against unauthorized ex parte contacts, this court believes that the Pennsylvania Supreme Court, if confronted with the issue, would at least require reasonable notice to a plaintiff or his counsel before defense counsel may communicate with plaintiff's treating physician. This approach fosters harmony and confidentiality between physician and patient because it enables the plaintiff's counsel (1) to notify the doctor of the limits of valid questioning as well as the possibility of personal liability of the physician in the event of improper disclosures, or (2) to seek a protective order when unusual circumstances exist. See Stempler v. Speidell, 100 N.J. 368, 495 A.2d 857 at 864-65. Under such a scheme, any infringement upon defense counsel's search for the truth is slight and is far outweighed by the protection afforded to the peculiar relationship between a patient and his physician.
Defense counsel maintains that allowing plaintiff's counsel to reach the treating physician first would have a chilling effect upon any subsequent ex parte meeting between the doctor and defense counsel. Yet, as discussed above, permitting defense counsel to make the initial contact with the treating physician without notice to the plaintiff or his counsel creates a situation wherein irrelevancies could be discussed and improper conduct could take place. Given that there is potential encroachment on the search for truth no matter which side makes the initial contact with a treating physician, the fiduciary duty owed by the physician to his patient dictates that the plaintiff's counsel be guaranteed at least advance notice of any ex parte communication between defense counsel and the physician. In addition, plaintiff's counsel normally does not possess leverage to improperly influence the physician, i.e., by warning the physician about his potential personal liability and by objecting to irrelevant questions before the ex parte interview occurs, plaintiff's counsel acts no differently than he could in a deposition setting.
It is undisputed in the present case that counsel for Dr. D'Anca failed to provide prior notice to plaintiff's counsel of the communications with Drs. Ambruso and Kao. The public policy favoring confidentiality between a physician and his patient compels this court to preclude defense counsel from calling Drs. Ambruso and Kao as expert witnesses at trial.
The court's ruling is unaltered by the prospect that Drs. D'Anca and Weisbaum will be dismissed from this action, with N.P.W. remaining as the sole defendant. Counsel for N.P.W. has indicated his intent to meet with plaintiff's former treating physicians and to call them as expert witnesses at trial. Inasmuch as the unauthorized ex parte contacts between D'Anca's counsel and Drs. Ambruso and Kao in early 1987 led to a situation wherein plaintiff's former treating physicians have refused even to speak with plaintiff's counsel, notice of future meetings between N.P.W.'s counsel and the treating physicians would be meaningless since plaintiff's counsel would be unable to protect his client's interests by discussing matters with Ambruso and Kao prior to their communications with N.P.W.'s counsel. Moreover, N.P.W.'s counsel and D'Anca's counsel share identical interests in this case, i.e., both have attempted to establish that the x-rays taken at N.P.W. on July 1, 1984 were adequate, that these x-rays revealed no fracture of the cervical spine and that plaintiff's injuries do not stem in any way from the delay in diagnosing and treating his cervical fracture. Following their ex parte discussions with D'Anca's counsel, Ambruso and Kao rendered opinions supporting the defendants' position on each of these issues. Further, after conducting scheduling and pretrial conferences in this matter, it is apparent that defense counsel were acting in unison in marshaling expert evidence. N.P.W.'s counsel thus benefitted from the ex parte communications in question. Finally, any expert testimony provided at trial by Ambruso and Kao on behalf of N.P.W. would inevitably carry at least the appearance of being tainted by their unauthorized ex parte contacts with D'Anca's counsel. Under these circumstances, public policy is best served by precluding N.P.W.'s counsel from calling Ambruso and Kao as expert witnesses at trial. The trial in this case has been continued, and N.P.W.'s counsel will be afforded ample opportunity to obtain other expert witnesses if such are needed.
In light of the court's holding that defense counsel must provide reasonable notice to the plaintiff or his counsel before ex parte contacting the plaintiff's treating physician, which notice was not furnished in this case, this court need not decide whether plaintiff's counsel has a right to be present when defense counsel meets informally with a treating physician, whether defense counsel must proceed through formal discovery procedures to elicit information from a treating physician or whether a treating physician may ever serve as an expert witness at trial on behalf of the defense.
For the reasons set forth above, plaintiff's motion in limine will be granted.
An appropriate Order will enter.
NOW, this 8th day of December, 1987, in accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
(1) Plaintiff's motion in limine is granted.