Verdicts

The plaintiff's decedent, Joseph Gallo, had admitted himself to the emergency room of Conemaugh Hospital for an amputation of a gangrened toe. Dr. Ashok Padhiar performed the pre-surgical anesthesia consult evaluation and assisted as anesthesiologist. At some time during or immediately after the surgery, the decedent suffered a cardiac arrest and sustained brain damage due to lack of oxygen. After living for three months in the Intensive Care Unit, Gallo died.

Dr. Padhiar had an alcohol addiction and had been arrested for DUI eight times in four different states. His medical license had been revoked in one or more states, but not in Pennsylvania.

The plaintiff filed a complaint with wrongful death and survival actions, in which she alleged that alcohol impaired Dr. Padhiar at the time of the decedent's surgery, and that Padhiar's actions and/or omissions ultimately caused the decedent's cardiac arrest that resulted in his death. The plaintiff later filed a motion to compel discovery, seeking records of the doctor's drug and alcohol treatment, specifically those records revealed to the Pennsylvania medical license board, Conemaugh Hospital, and the Cambria County Court of Common Pleas to lessen the sentence for his 2010 DUI conviction.

The trial court granted the plaintiff's motion to compel, determining that the defendant doctor had effectively waived his privilege against disclosure by including in his answer to the plaintiff's complaint specific denials to the allegations that he was impaired by alcohol during the decedent's surgery. The trial court further ruled that the “good cause” exception permitting disclosure under the Pennsylvania and federal statutes had been met.

On appeal, the defendant asserted that both Pennsylvania and federal statutory law precluded disclosure of confidential communications contained in his alcohol treatment records. He argued that the trial court erred in determining that his specific denials of the plaintiff's allegations that he was intoxicated during decedent's surgery constituted offers of testimony under the federal regulations governing confidentiality of drug and alcohol treatment records.

The court noted that the federal regulations permit disclosure of confidential communications regarding drug and alcohol treatment in connection with litigation in which the patient receiving treatment offers testimony or evidence pertaining to the content of the confidential communications. However, the court held that the “offer of testimony” contemplated by the regulations included testimony under oath, rather than factual allegations or denials in pleadings. The court further distinguished Dr. Padhiar's situation, given that he was the defendant denying specific factual allegations made in the plaintiff's complaint; his compliance with procedural rules did not constitute an offering of testimony contemplated by the regulations. The court also held that prior disclosures of records to the medical licensing board, Conemaugh Hospital, or the trial court were inapplicable, as these were not made in the context of this litigation.

Further, the court ruled that the Pennsylvania statues governing disclosure of confidential records did not include a “good cause” exception similar to that contained in the federal version with respect to records in the possession of a private practitioner or medical facility. Therefore, the trial court erred in ruling that the “good cause” exception applied to appellant's records in the possession of his medical providers.

Medical Defendants Fraudulently Joined: Case Remains in Federal Court

The U.S. District Court for the Middle District of Florida recently denied some plaintiffs' motion to remand a suit to Florida state court after it was removed there by the defendants, on the basis that the plaintiffs had fraudulently joined several medical defendants to the original product liability case merely in order to defeat federal diversity jurisdiction. M.W. v. Ford Motor Co., 2015 U.S. Dist. LEXIS 36895 (M.D. Fla. 3/24/15).

The Florida plaintiffs were injured by a car that unexpectedly rolled down a driveway. They brought suit in state court, alleging product liability and negligence, against the manufacturer of the car, the Ford Motor Co., and the rental car company that had rented the vehicle, Enterprise Holdings Inc. Three months later, the plaintiffs amended their complaint to assert causes of action for medical malpractice in connection with their injuries against Florida residents and entities Craig R. Wolff, M.D., Laser Spine Institute LLC, and Laser Spine Surgical Center LLC. Ford filed a notice of removal alleging diversity jurisdiction pursuant to 28 U.S.C. ' 1332 on the basis that Ford and the properly named Enterprise Defendants were not Florida companies and were therefore diverse to the Florida plaintiffs, and that the Florida medical defendants were fraudulently joined in order to prevent successful removal to federal court. The plaintiffs moved to remand the actions to state court.

The court explained that any civil case filed in state court may be removed to federal court by the defendant if the case could have been brought originally in federal court. Federal courts have diversity jurisdiction over civil actions when the amount in controversy exceeds $75,000 and the action is between citizens of different states. 28 U.S.C. ' 1332(a). Diversity jurisdiction requires complete diversity, so every plaintiff must be diverse from every defendant. Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1359 (11th Cir.1996), abrogated on other grounds by Cohen v. Office Depot , 204 F.3d 1069 (11th Cir.2000). And when a defendant removes an action to federal court on diversity grounds, a court must remand the matter to state court if complete diversity is lacking between the parties or if any of the properly served defendants are citizens of the state in which the suit was filed. Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 (11th Cir.2007). The question, therefore, was whether the medical plaintiffs, who as Florida residents would defeat diversity if allowed to remain in the suit, were properly joined in the action.

The Federal Rule of Civil Procedure 20(a)(2) permits joinder of defendants to an action if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences,” and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2)(A)-(B). Looking at these requirements, the court concluded that the claims against the medical defendants were fraudulently joined to the actions against Ford and Enterprise. The nondiverse medical defendants shared no joint, several or alternative liability with the car-related companies. In addition, the claims against the car-related companies had no real connection to the claims against the medical defendants, the one requiring showings of defective product design and maintenance, the other requiring showings of medical malpractice. The court therefore denied the plaintiffs' motion to remand the case to state court.

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Doctor's Alcohol Treatment Records Remain Privileged

A Pennsylvania appellate court has held that a lower court's ruling that a physician's drug and alcohol treatment records were privileged from discovery in a medical malpractice case against him was correct, because the physician's factual denials in his answer to the plaintiff's complaint did not constitute an offering of testimony or evidence that would result in an implied waiver of his privilege against disclosure. Gallo v. Conemaugh Health Sys. Inc., PICS Case No. 15-0659 (Pa. Super. April 17, 2015) Strassburger, J. (14 pages).

Dr. Ashok Padhiar appealed from the order of the trial court that granted the motion to compel discovery filed by plaintiff Margaret Gallo, who sought the doctor's drug and alcohol treatment records.

The plaintiff's decedent, Joseph Gallo, had admitted himself to the emergency room of Conemaugh Hospital for an amputation of a gangrened toe. Dr. Ashok Padhiar performed the pre-surgical anesthesia consult evaluation and assisted as anesthesiologist. At some time during or immediately after the surgery, the decedent suffered a cardiac arrest and sustained brain damage due to lack of oxygen. After living for three months in the Intensive Care Unit, Gallo died.

Dr. Padhiar had an alcohol addiction and had been arrested for DUI eight times in four different states. His medical license had been revoked in one or more states, but not in Pennsylvania.

The plaintiff filed a complaint with wrongful death and survival actions, in which she alleged that alcohol impaired Dr. Padhiar at the time of the decedent's surgery, and that Padhiar's actions and/or omissions ultimately caused the decedent's cardiac arrest that resulted in his death. The plaintiff later filed a motion to compel discovery, seeking records of the doctor's drug and alcohol treatment, specifically those records revealed to the Pennsylvania medical license board, Conemaugh Hospital, and the Cambria County Court of Common Pleas to lessen the sentence for his 2010 DUI conviction.

The trial court granted the plaintiff's motion to compel, determining that the defendant doctor had effectively waived his privilege against disclosure by including in his answer to the plaintiff's complaint specific denials to the allegations that he was impaired by alcohol during the decedent's surgery. The trial court further ruled that the “good cause” exception permitting disclosure under the Pennsylvania and federal statutes had been met.

On appeal, the defendant asserted that both Pennsylvania and federal statutory law precluded disclosure of confidential communications contained in his alcohol treatment records. He argued that the trial court erred in determining that his specific denials of the plaintiff's allegations that he was intoxicated during decedent's surgery constituted offers of testimony under the federal regulations governing confidentiality of drug and alcohol treatment records.

The court noted that the federal regulations permit disclosure of confidential communications regarding drug and alcohol treatment in connection with litigation in which the patient receiving treatment offers testimony or evidence pertaining to the content of the confidential communications. However, the court held that the “offer of testimony” contemplated by the regulations included testimony under oath, rather than factual allegations or denials in pleadings. The court further distinguished Dr. Padhiar's situation, given that he was the defendant denying specific factual allegations made in the plaintiff's complaint; his compliance with procedural rules did not constitute an offering of testimony contemplated by the regulations. The court also held that prior disclosures of records to the medical licensing board, Conemaugh Hospital, or the trial court were inapplicable, as these were not made in the context of this litigation.

Further, the court ruled that the Pennsylvania statues governing disclosure of confidential records did not include a “good cause” exception similar to that contained in the federal version with respect to records in the possession of a private practitioner or medical facility. Therefore, the trial court erred in ruling that the “good cause” exception applied to appellant's records in the possession of his medical providers.

Medical Defendants Fraudulently Joined: Case Remains in Federal Court

The U.S. District Court for the Middle District of Florida recently denied some plaintiffs' motion to remand a suit to Florida state court after it was removed there by the defendants, on the basis that the plaintiffs had fraudulently joined several medical defendants to the original product liability case merely in order to defeat federal diversity jurisdiction. M.W. v. Ford Motor Co., 2015 U.S. Dist. LEXIS 36895 (M.D. Fla. 3/24/15).

The Florida plaintiffs were injured by a car that unexpectedly rolled down a driveway. They brought suit in state court, alleging product liability and negligence, against the manufacturer of the car, the Ford Motor Co., and the rental car company that had rented the vehicle, Enterprise Holdings Inc. Three months later, the plaintiffs amended their complaint to assert causes of action for medical malpractice in connection with their injuries against Florida residents and entities Craig R. Wolff, M.D., Laser Spine Institute LLC, and Laser Spine Surgical Center LLC. Ford filed a notice of removal alleging diversity jurisdiction pursuant to 28 U.S.C. ' 1332 on the basis that Ford and the properly named Enterprise Defendants were not Florida companies and were therefore diverse to the Florida plaintiffs, and that the Florida medical defendants were fraudulently joined in order to prevent successful removal to federal court. The plaintiffs moved to remand the actions to state court.

The court explained that any civil case filed in state court may be removed to federal court by the defendant if the case could have been brought originally in federal court. Federal courts have diversity jurisdiction over civil actions when the amount in controversy exceeds $75,000 and the action is between citizens of different states. 28 U.S.C. ' 1332(a). Diversity jurisdiction requires complete diversity, so every plaintiff must be diverse from every defendant. Tapscott v. MS Dealer Serv. Corp. , 77 F.3d 1353, 1359 (11th Cir.1996), abrogated on other grounds by Cohen v. Office Depot , 204 F.3d 1069 (11th Cir.2000). And when a defendant removes an action to federal court on diversity grounds, a court must remand the matter to state court if complete diversity is lacking between the parties or if any of the properly served defendants are citizens of the state in which the suit was filed. Florence v. Crescent Res., LLC , 484 F.3d 1293, 1297 (11th Cir.2007). The question, therefore, was whether the medical plaintiffs, who as Florida residents would defeat diversity if allowed to remain in the suit, were properly joined in the action.

The Federal Rule of Civil Procedure 20(a)(2) permits joinder of defendants to an action if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences,” and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2)(A)-(B). Looking at these requirements, the court concluded that the claims against the medical defendants were fraudulently joined to the actions against Ford and Enterprise. The nondiverse medical defendants shared no joint, several or alternative liability with the car-related companies. In addition, the claims against the car-related companies had no real connection to the claims against the medical defendants, the one requiring showings of defective product design and maintenance, the other requiring showings of medical malpractice. The court therefore denied the plaintiffs' motion to remand the case to state court.

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