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June 28, 1991


The opinion of the court was delivered by: McCLURE, District Judge.


I. Background:

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.

A. Rule 26(b)(4)

In response to discovery requests a party is required to supply the requesting party with the identity of expert witnesses and the subject-matter and substance of their testimony.*fn1 Fed.R.Civ.P. 26(b)(4)(A)(i). Plaintiff maintains that the United States failed to comply with this rule by: 1) listing Dr. Thiele as a fact witness, rather than an expert, and 2) eliciting expert testimony from Dr. Comerota relating to liability, standard of care and causation after indicating that his testimony was limited to his examination of plaintiff on April 19, 1989 and his diagnosis of chronic compartment syndrome. Assuming, arguendo, that this is true, standing alone, it would not justify the exclusion of this expert testimony.*fn2

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).

B. Public Policy

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 Bayley held:

  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.

III. Findings of fact:

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.)

A. General.

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 1984.

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 agency.

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 closing it.

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 returning.

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 a boot.

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 ...

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