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Kathleen Buckman and Michael v. Gary Verazin

October 5, 2012

KATHLEEN BUCKMAN AND MICHAEL BUCKMAN
v.
GARY VERAZIN, M.D.; WYOMING VALLEY SURGICAL ASSOCIATES; JOSEPH RIDILLA, D.O.; JOSEPH J. RIDILLA, D.O., P.C.; WYOMING VALLEY HEALTHCARE SYSTEM, INC., WILKES-BARRE GENERAL HOSPITAL APPEAL OF: GARY VERAZIN, M.D., AND WYOMING VALLEY SURGICAL ASSOCIATES, KATHLEEN BUCKMAN AND MICHAEL BUCKMAN
v.
GARY VERAZIN, M.D.; WYOMING VALLEY SURGICAL ASSOCIATES; JOSEPH RIDILLA, D.O.; JOSEPH J. RIDILLA, D.O., P.C.; WYOMING VALLEY HEALTHCARE SYSTEM, INC., WILKES-BARRE GENERAL HOSPITAL APPEAL OF: WYOMING VALLEY HEALTH CARE SYSTEM, INC. & WVHCS-HOSPITAL D/B/A WILKES- BARRE GENERAL HOSPITAL, APPELLANT



Appeal from the Order Entered December 20, 2011 In the Court of Common Pleas of Luzerne County Civil Division at No. 299 of 2010

The opinion of the court was delivered by: Bender, J.:

J-A23016-12 J-A23017-12

IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appeal from the Order Entered December 20, 2011 In the Court of Common Pleas of Luzerne County Civil Division at No. 299-2010

BEFORE: STEVENS, P.J., BENDER, J. AND GANTMAN, J.

OPINION BY BENDER, J.:

Gary Verazin, M.D. ("Dr. Verazin"), Wyoming Valley Surgical Associates, Wyoming Valley Health System, Inc. ("Health System"), and Wilkes-Barre General Hospital ("Hospital") (collectively "Appellants") appeal from the order entered on December 20, 2011, that granted the motion for reconsideration filed by Kathleen Buckman and Michael Buckman (the "Buckmans"), and directed that their discovery requests in this medical malpractice case be granted. Specifically, the court's order directed inter alia that Appellants produce "all operative notes, redacted for patient names/medical record number, for all sigmoid colectomy and/or lower anterior resection procedures done in the past five (5) years before January 11, 2008 by Gary Verazin, M.D." Trial Court Order, 12/20/11, at ¶ 1. We reverse.

This litigation arose after Dr. Verazin performed a sigmoid colectomy and colostomy on Mrs. Buckman on January 11, 2008. The Buckmans alleged medical negligence against Appellants as a result of the care Mrs. Buckman received. With regard to the depositions taken of Dr. Verazin and a portion of the procedural history of this matter, the trial court stated:

The [d]eposition of Dr. Verazin was started on July 7, 2011 and completed on December 13, 2011. Dr. Verazin testified on December 13, 2011 that he conducted the surgery in the manner in which he did due to the size of Mrs. Buckman's rectum. The Doctor stated that he had to tailor the surgery to perform the anastomosis based on the fact that Mrs. Buckman had the nature of a rectum and a very shortened mesentery proximably [sic] from her disease which made mobilizing the proximal bowel very difficult. Dr. Verazin then testified that he did the procedure in the manner which he did it because of her unique physique but that the procedure he utilized was a well[- ]known technique that can be used and should be in a surgeon's armamentarium when confronted with a difficult anatomy and colon surgery. This Court finds credible evidence substantiating that a similar line of question was explored during the July 7, 2011 deposition and that Dr. Verazin did not mention that Mrs. Buckman had a unique anatomy.

After the July 7, 2011 deposition of Dr. Verazin, the [Buckmans] served defendants Wyoming Valley Health Care System, Inc. and Wilkes-Barre General Hospital with a Second Supplemental Request for Production of Documents on August 11, 2011 requesting additional information as well as the medical records of all sigmoid colectomy and/or anterior resection procedures conducted by Dr. Verazin in the five (5) years prior to January 11, 2008 and all of Dr. Verazin's surgical records of January 11, 2008. Wyoming Valley Health Care System, Inc. and Wilkes-Barre General Hospital provided their responses to the Second Supplemental Request for Production of Documents on September 9, 2011, but objected to requests pertaining to the five (5) prior year surgical records of Dr. Verazin as well as the January 11, 2008 records asserting that the information sought is protected health information. On September 11, 2011 the [Buckmans] directed a letter to the [Appellants] reiterating that the requests directed that all information which identified patients was to be redacted.

On November 2, 2011 the [Buckmans] filed a Motion to Compel the [Appellants] to produce documents in response to the Second Supplemental Request for Production of Documents filed by the [Buckmans]. The [Buckmans] argued that the five (5) prior years of surgical records are necessary to determine Dr. Verazin's experience with the specific procedure at issue as well as his technique in performing the surgery as the [Buckmans] allege Dr. Verazin's technique was negligence. The [Buckmans] further argued that all of Dr. Verazin's surgical records from January 11, 2008 are discoverable asserting that the time line of events of that day are at issue in the case.

Trial Court Opinion (T.C.O.), 2/27/12, at 1-2.

Following Appellants' response and oral argument, the Honorable Lewis Wetzel denied the Buckmans' motion to compel. However, after the completion of Dr. Verazin's deposition on December 13, 2011, the Buckmans requested reconsideration, which Judge Wetzel granted. Specifically, on December 20, 2011, Judge Wetzel granted the Buckmans' motion to compel "limiting the scope of the information produced ... pursuant [to] 45 C.F.R. § 164.512(a)." T.C.O. at 3. Appellants then requested certification for an interlocutory appeal; however, Judge Wetzel denied that request as well as Appellants' emergency petition to stay the December 20, 2011 order.

Appellants filed the instant appeal. On February 2, 2012, this Court entered a temporary stay of the December 20th order and directed the trial court to provide its reasoning for issuing its order requiring Appellants to produce the information requested and its reasoning for refusing to grant certification for an interlocutory appeal and a stay during the pendency of the appeal. On February 27, 2012, the Honorable Lesa S. Gelb*fn1 issued an opinion in response to this Court's February 2nd order. In the opinion, Judge Gelb attempts to provide a basis for Judge Wetzel's orders and explains that "the information requested by the [Buckmans] applies directly to the allegations set forth in [their complaint] in addition to permitting the [Buckmans] an opportunity to examine the inconsistent testimony of Dr. Verazin." T.C.O. at 7. Judge Gelb also discussed the Health Insurance Portability and Accountability Act of 1996 (HIPAA), concluding that Judge Wetzel's December 20, 2011 order complied with the federal mandate. Then, by order dated March 9, 2012, this Court extended the stay until our decision on the merits is reached.

We begin our review by recognizing that the December 20, 2011 order involving discovery is not a final order and, therefore, not appealable. See Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004) (stating, "in general, discovery orders are not final, and are therefore unappeable"). However, such an order is appealable under Pa.R.A.P. 313(b) as a collateral order. Id. Rule 313(b) states: "A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." As in Jones, the discovery order here compels the production of private and confidential medical information of non-parties and "once disclosed, the ...


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