The opinion of the court was delivered by: McCLURE, District Judge.
This is an action arising under the Federal Tort Claims Act,
28 U.S.C. § 2671 et seq. (the "FTCA"), and this
court has jurisdiction under the provisions of 28 U.S.C. § 1346(b).
Plaintiffs, Donald J. MacDonald and Mary G. MacDonald, his
wife, filed a three-count complaint against the United States
of America acting through its agency, the Veterans
Administration Medical Center at Wilkes-Barre, Pennsylvania
(the "VA Medical Center" or "USVAH-WB"). At the VA Medical
Center on or about April 2, 1986 plaintiff Donald J. MacDonald
underwent surgery known as a superficial femoral-anterior
tibial reversed saphenous vein reconstruction on his left leg.
Plaintiff Donald J. MacDonald claimed that this operation
resulted in extreme exacerbation of existing chronic venous
insufficiency and has left him incapacitated.
Count I of the complaint alleges that the VA Medical Center
deviated from the standard approved surgical practice by
failing to have available and to consult plaintiffs' prior
medical records, as well as failing to perform indicated tests
and ignoring or failing to recognize signs and symptoms
contraindicating surgery, thereby performing unnecessary,
unwarranted and harmful surgery and being otherwise negligent.
In Count II MacDonald alleges that he did not give his informed
consent to the surgery. In Count III plaintiff Mary G.
MacDonald asserted a derivative claim for loss of support,
consortium and services. The court has previously dismissed
Count III and the veteran, Donald J. MacDonald, remains as sole
party plaintiff and will be hereinafter referred to as
"MacDonald". As MacDonald was not entitled to a jury trial,
28 U.S.C. § 2402, the court proceeded with a bench trial,
bifurcating the issues of liability and damages. This
memorandum pertains solely to the liability phase of the case.
II. Motion to Strike Expert Testimony
At trial, plaintiff moved to strike the testimony of Drs.
Thiele and Comerota. He claimed that the United States violated
the discovery rules in presenting its expert testimony. In
addition, he has argued that the United States violated the
public policy of the Commonwealth of Pennsylvania by conducting
ex parte interviews with plaintiff's treating physician, Dr.
Thiele, and, therefore his entire testimony should be stricken.
There are four factors which the court must consider in
determining whether to exclude expert testimony for a failure
to comply with pre-trial notice requirements: 1) the prejudice
or surprise in fact of the party against whom the witness would
testify; 2) the ability of that party to cure the prejudice; 3)
the extent to which allowing the witness to testify would
disrupt the orderly and efficient trial of the case; and 4) bad
faith or willfulness in failing to comply with the pre-trial
notice procedures. DeMarines v. KLM Royal Dutch
Airlines, 580 F.2d 1193, 1201-02 (3d Cir. 1978). Any claim
by the plaintiff that he was surprised by the testimony of Drs.
Comerota and Thiele is unjustified. Regardless of the substance
of their testimony, the United States did notify the plaintiff
that the doctors would, in fact, be testifying. Moreover, the
testimony of Drs. Comerota and Thiele was virtually identical
to that of the United States' other experts, Drs. Larkin and
Roberts. It is difficult to conceive of any prejudice suffered
by plaintiff which would justify striking the testimony of
these witnesses. See Go-Tane Service Stations v. Clark Oil
& Refining, 798 F.2d 481, 491 (Em.App. 1986) cert.
denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 704
(1986); Stich v. United States, 730 F.2d 115 (3d Cir.
1984) cert. denied, 469 U.S. 917, 105 S.Ct. 294, 83
L.Ed.2d 229 (1984).
Plaintiff contends that the United States violated the public
policy of the Commonwealth of Pennsylvania by conducting ex
parte interviews with Dr. Thiele, plaintiff's treating
physician.*fn3 This contention is based largely on Manion
v. N.P.W. Medical Center, 676 F. Supp. 585 (M.D.Pa. 1987).
In Manion the plaintiff's former treating physicians
refused to speak to plaintiff's counsel after engaging in ex
parte discussions with defense counsel and agreeing to testify
as expert witnesses for the defense. Subsequently, the court
held that the defense was precluded from future ex parte
contacts with any of the plaintiff's former or current treating
physicians unless advance reasonable notice was provided to
plaintiff or his counsel.*fn4 The court based this decision on
what it opined to be the public policy of the Commonwealth of
Pennsylvania of protecting the confidential nature of the
physician-patient relationship and preserving the physician's
fiduciary responsibilities during the litigation process.
In reality, there is no such clear-cut public policy in this
state.*fn5 In Holtzman v. Zimmerman,
47 Pa. D. & C.3d 608 (1988), Judge Bayley
rejected the notion of a public policy
prohibiting ex parte discussions with treating physicians.*fn6
After considering all of the case law, including
Manion, Judge Bayley determined that Pennsylvania's
statutory protection of the physician-patient relationship,
from which this public policy was derived, is severely
circumscribed.*fn7 See Feingold v. SEPTA, 512 Pa. 5607,
517 A.2d 1270 (1986); Commonwealth ex rel. Platt v.
Platt, 266 Pa. Super. 276, 404 A.2d 410 (1979); In re
"B", 482 Pa. 471, 394 A.2d 419 (1978). Judge Bayley also
examined statutes which provide broad protection for
confidential communications, i.e. attorney-client and
psychologist-patient, and noted that the legislature was
perfectly capable of providing a broad physician-patient
privilege if it so desired.
After an exhaustive analysis of the relevant law, Judge
In that unique situation such as Manion
where the prior treating physicians would not even
discuss the case with plaintiff's attorney,
plaintiff's attorney is allowed to conduct
depositions and can always call the physician as a
fact witness. The remedy provided in
Manion was not necessary or supported by
Pennsylvania law. Ultimately, the credibility of
any witness, a physician included, is to be
determined by the trier of fact. The knowledge
these physicians may have, or the interest they
may have in the outcome of a case, or any
animosity they may have toward their former
patients may all be considered in the credibility
to be attributed to their testimony.
Holtzman v. Zimmerman, supra, at 628.
Furthermore, in Moses v. McWilliams, 379 Pa. Super. 150,
549 A.2d 950 (1988) (en banc), allocatur denied,
521 Pa. 630, 558 A.2d 532 (1989), the Superior Court refused to
recognize a cause of action against plaintiff's treating
physician for defamation and breach of confidentiality
resulting from the physician's participation in ex parte
conferences in connection with a prior malpractice suit filed
by the plaintiff. The Moses majority opinion of Judge
Montemuro provides extensive commentary and analysis of the
Pennsylvania physician-patient privilege and how it applies
when the patient files a personal injury claim.
However, by permitting ex parte interviews with treating
physicians, the Superior Court did not intend to open the door
to any and every disclosure by a physician concerning his
patient's medical condition. The opinion specifically notes
that the disclosures should be limited to that which is
pertinent and material to the underlying action. Id.
at 169, 549 A.2d at 959. Plaintiff makes much of the fact that
the physician in Moses was prohibited from testifying
as an expert in the malpractice action. The trial judge ruled
that he could testify only as a fact witness. However, the
physician in Moses was the subject of numerous ex
parte interviews and continued to meet with defense counsel
despite an injunction. In the instant matter, defense counsel's
ex parte contact was minimal and does not justify precluding
Dr. Thiele from testifying as an expert.
Based on the analysis of Pennsylvania doctor-patient
privilege contained in Holtzman and Moses,
this court, with all due respect, rejects the notion of a
public policy in Pennsylvania prohibiting ex parte contact with
treating physicians, as set forth in Manion.
Accordingly, plaintiff's motion to strike will be denied.
The court heard five days of testimony and watched videotaped
depositions of two expert medical witnesses. In addition to his
own testimony, MacDonald presented nine lay witnesses. His
family physician and the operating surgeon (as on
cross-examination) both testified as fact and expert witnesses,
and a vascular surgeon testified as an expert witness. In
addition, transcripts of the depositions of Drs. Sicilia and
Cesar, surgical residents serving a rotation at the VA Medical
Center, were presented on behalf of plaintiff. Defendant
presented the testimony of four vascular surgeons, two of whom
had examined MacDonald.
On the basis of all the evidence presented, and the Agreed
Statement of Undisputed Facts (134 paragraphs), the court makes
the following findings of fact comprised in the most part by
significant portions of MacDonald's very extensive medical
history. (Additional findings of fact pertaining primarily to
the issue of informed consent are set forth in narrative form
in the discussion portion of this memorandum.)
1. MacDonald resides with his wife, Mary G. MacDonald, at
1718 Penn Avenue, Scranton, Lackawanna County, Pennsylvania,
within the Middle District of Pennsylvania.
2. Defendant United States of America operates a health care
facility known as The Veterans Administration Medical Center at
Wilkes-Barre, Luzerne County, Pennsylvania, also within the
Middle District of Pennsylvania.
3. MacDonald was born May 16, 1939, and is a lifelong
resident of Scranton, Pennsylvania.
4. MacDonald was graduated from Eastern Kentucky University
where he was a member of the United States Army ROTC and from
which he obtained a bachelor of arts degree and a teacher's
certificate in health and physical education.
5. MacDonald was an outstanding athlete in high school,
preparatory school and college.
6. MacDonald entered the United States Army as a Second
Lieutenant in January 1964 and volunteered for combat duty in
Vietnam in January of 1967.
7. MacDonald completed substantial studies toward a master's
degree in education while in the United States Army.
8. MacDonald taught military science while in the United
States Army at Georgetown University.
9. While in Vietnam in March 1967, as an infantry battalion
advisor to the Republic of Vietnam's Army, he was seriously
wounded in the legs.
10. In 1969 MacDonald was honorably discharged from the armed
services and returned to Scranton where he immediately became
employed with Emery Worldwide, initially as a supervisor of the
mail room and then about one year later was reassigned to the
credit department, which he eventually took over as manager in
the early 1970's. Not happy at Emery, he took employment as a
letter carrier with the United States Postal Service in July
11. In January 1986 MacDonald, having experienced
considerable pain in his lower left calf while walking his
route, went to the VA Medical Center. He was found to have an
arterial occlusion or blockage in his lower left extremity, and
consequently on or about April 2, 1986, underwent surgery at
the VA Medical Center to correct the occlusion. Dr. Juan
DeRojas, a surgeon with the United States Veterans
Administration, performed a superficial femoral-anterior tibial
reversed saphenous vein reconstruction on MacDonald's left leg.
12. The arterial surgery was successful, in that it restored
normal blood flow to the lower left extremity.
13. Post-operatively MacDonald experienced great swelling in
his left leg with subsequent skin breakdown. He never returned
to his employment and although the swelling and dermatitis came
under control by virtue of frequent periods of elevation of the
leg above the heart, MacDonald has continued to experience pain
in his left leg which has become progressively more severe and
continues to be disabling.
14. At all times material to this action, all persons,
physicians, nurses or technicians who treated or examined,
tested or cared for MacDonald at the USVAH were employees or
agents of the defendant, United States of America, and were
acting within the scope and course of their employment or
B. Medical History — Pre-Operative.
15. On March 4, 1967, in Vietnam, MacDonald suffered multiple
fragment wounds in both legs, the back, and left elbow.
16. On March 4, 1967, a physical exam was performed at the
67th Evac Hospital which revealed multiple fragment wounds of
both legs with pulses intact in both feet (Dorsalis Pedalis).
No neurological deficit was noted except a complaint of
numbness in the little toe of the left foot.
17. On March 4, 1967, an operation was performed under
general anesthesia which consisted of debridement of multiple
fragment wounds of both legs, with a postoperative complaint of
numbness of the little toe of the left foot.
18. On March 4, 1967, an x-ray was performed at the 67th
Evacuation Hospital which showed exostosis (a benign growth
projecting from a bone surface characteristically capped by
cartilage) at the proximal tibias and left distal femur.
19. Upon return from the recovery room, the color and
sensation in both feet were satisfactory.
20. Upon his discharge from the 67th Evac Hospital, MacDonald
was observed to have had no neurovascular injury to his legs
except some numbness in his little left toe.
21. On March 6, 1967, MacDonald was transferred to Tripler
Army General Hospital, Honolulu, Hawaii, where he was
hospitalized for 35 days and was discharged on April 7, 1967.
22. On his admission exam at Tripler Army General Hospital
(TGH) it was determined that soft tissue wounds were confined
to the lower extremities and that MacDonald had no fever,
chills or other complications since his injury.
23. The admitting diagnosis at TGH was multiple fragment
wounds of both legs with distal superficial peroneal nerve
injury, which was manifested by a decreased sensation over the
1st and 2nd toes of the left foot and anterior part of ankle.
24. On March 10, 1967, a debridement of the left leg with a
closure of wounds was performed on MacDonald at TGH. On
inspection it was found that there were two wounds of the left
leg. There was a wound over the lateral (side) aspect of the
leg which was down through the fascia (a band or sheet of
tissue connecting muscles) of the anterior (toward the front)
compartment. The fascia of the anterior compartment was opened
and run up the subcutaneous aspect of the leg, opening it from
approximately 2" below the fibular head to the ankle and then
25. There was a small second wound over the anterior (toward
the front) aspect of the distal (remote) fibia.
26. Upon his return to the ward from the recovery room,
MacDonald had full sensory and motor return in his left leg.
27. When he was discharged from TGH, there was an area of
hypesthesia (a state of abnormally decreased sensitivity to
stimuli) on the lateral (side) and dorsal (directed toward or
situated on the back) aspects of the left foot which was
attributed to the superficial peroneal nerve injury.
28. When he was discharged from TGH, MacDonald had weakness
of dorsiflexion of the left ankle, eversion of the left foot
and eversion and flexion of the toes of the left foot. There
was no evidence of inflammation of the soft tissue of the left
leg so that his treating physician concluded that the range of
motion was related to muscle discomfort.
29. The final diagnosis at discharge from TGH was wounds,
multiple fragments, posterior (directed toward or situated at
the back) aspect of trunk and lower extremities with left
superficial peroneal nerve injury.
30. On April 24, 1967, MacDonald was admitted to Valley Forge
General Hospital (VFGH) in Pennsylvania, where his wounds were
found to be healed.
31. On admission to VFGH, it was noted that MacDonald had
numbness over dorsum (the back) and lateral (side) aspect of
left foot from distal (remote) healing scar.
32. On admission exam, MacDonald had a positive Tinel's sign
from the fibula head with conduction of the toes. There was no
decrease in sensation on the plantar surface. He had sensation
to pressure over the numb area.
33. On April 25, 1967, an EMG study was performed on
MacDonald which showed some deficiency of the posterior tibial
nerve distribution on the left leg, which was observed to be
34. MacDonald's course at VFGH was uneventful, and he was
discharged on June 26, 1967 to return to restricted duty with
a left peroneal nerve injury resulting in a partial neuropathy
of the left peroneal nerve.
35. On November 1, 1967, on a referral from the Rader Clinic
at Fort Meyer, Virginia, MacDonald was referred to Walter Reed
Army General Hospital (WRAGH) for a neurosurgical consult. The
reason for the request was paresthesia and burning from scar at
anterior (situated at or directed toward the front) mid left
leg, as well as for complaints referable to the right leg.
36. On November 1, 1967, a provisional diagnosis of nerve
irritation and regeneration was made at WRAGH.
37. On November 6, 1967, a final diagnosis at WRAGH was made
that the neuroma in the scar over the left lower leg is very
sensitive to direct pressure and an elective revision of the
neuroma was recommended.
38. On January 23, 1968, MacDonald was admitted to WRAGH with
a diagnosis of traumatic neuroma, left superficial nerve. His
chief complaint on admission was that he developed a painful
neuroma and could not wear a combat boot and he wanted the
neuroma removed or repaired in order to facilitate his wearing
39. On admission at WRAGH, a physical exam revealed a
palpable neuroma at the distal one-third of the left leg in the
course of the superficial peroneal nerve with a Tinel sign
listed at the scar. Sensation of the lateral foot and over the
medical aspect of the foot was normal. All other