The state Superior Court has refused to make discoverable records pertaining to a defendant surgeon’s treatment of third-party patients.

The court said those records were irrelevant to the allegations in the current medical malpractice case and that the plaintiffs’ “collateral evidentiary interest when weighed against the need for confidentiality of the records of third parties who have not given their consent does not overcome the right to privacy.”

A unanimous three-judge panel reversed a Luzerne County trial judge’s order granting plaintiffs Kathleen and Michael Buckman’s motion to compel “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 years before January 11, 2008,” by defendant Dr. Gary Verazin.

The panel, led by Judge John T. Bender, said Verazin’s prior treatment of patients is irrelevant to his treatment of Kathleen Buckman.

“The information relating to third parties that have not given their consent is confidential and is not relevant to the instant negligence claim in that actions taken by Dr. Verazin when operating on other patients is not probative of what his actions were when caring for Ms. Buckman,” Bender said. “The standard of care is an objective standard and does not contemplate a focus on a physician’s state of mind.”

Bender was joined by President Judge Correale F. Stevens and Judge Susan Peikes Gantman.

In Buckman v. Verazin, according to Bender, the Buckmans sued Verazin in January 2008, alleging medical negligence following a sigmoid colectomy and colostomy the doctor performed on Kathleen Buckman.

According to Bender, then-Luzerne County Court of Common Pleas Judge Lewis Wetzel said in his opinion that Verazin testified at deposition that he had to tailor the manner in which he performed the surgery to Buckman’s unique anatomy — a shortened mesentery that made it difficult to move the proximal bowel.

According to Wetzel, Verazin testified that he used a well-known technique, Bender said.

Wetzel said that following Verazin’s July 7, 2011, deposition, the Buckmans served defendants Wyoming Valley Health Care System Inc. and Wilkes-Barre General Hospital with a request for medical records related to all sigmoid colectomy or anterior resection procedures Verazin had performed over the five years prior to January 11, 2008, according to Bender.

The defendants objected and the Buckmans filed a motion to compel on November 2, 2011, Bender said.

Following oral argument, Wetzel first denied the motion, but, upon reconsideration, granted it, according to Bender.

The defense requested certification for an interlocutory appeal and an emergency petition to stay the order, both of which Wetzel denied, Bender said.

The defense appealed to the Superior Court, which requested that the trial court provide its reasoning for granting the plaintiffs’ motion to compel, according to Bender.

In February, Luzerne County Judge Lesa S. Gelb, who took over the case from Wetzel when his term expired in January, issued an opinion explaining that the information the Buckmans requested “applies directly” to their allegations against Verazin, Bender said.

On appeal, the Buckmans argued that records detailing the techniques Verazin used in prior surgeries were essential to determining whether he was aware of the proper standard of care for such procedures, according to Bender.

Bender disagreed, however, pointing to the Superior Court’s 2011 ruling in Passarello v. Grumbine, in which it banned the “error in judgment” defense in medical malpractice cases.

Bender said the Buckmans’ argument for why the requested operative notes should be discoverable “alternatively compares to a doctor’s employment of the ‘error in judgment’ rule to defend his or her actions.”

“Simply stated, the law in Pennsylvania ‘only allows consideration of whether the care a physician rendered [falls] below the standard of care established by expert testimony[;]‘ it does not allow consideration of the subjective state of mind of the doctor when he or she undertakes to treat a patient,” Bender said.

Bender also cited the Superior Court’s 2004 ruling in Jones v. Faust, which held that there were less intrusive ways of attempting to impeach a doctor than through confidential medical records.

Similarly, Bender said, the Buckmans “are seeking the operative reports in order to impeach Dr. Verazin, a use that the Jones court found could be ‘accomplished by other, less intrusive means’ such as the testimony of another doctor or questions asked of the physician himself about his prior cases.”

Counsel for the Buckmans, Matthew A. Casey of Ross Feller Casey in Philadelphia, said he and his clients plan to petition the Superior Court for en banc reargument and, if necessary, seek review by the state Supreme Court.

If this ruling ultimately stands, Casey said, the trial court will be forced to fashion some type of alternate remedy by which the plaintiffs may challenge Verazin’s testimony that he had to alter his usual surgical technique when operating on Buckman.

Casey said he remains “extremely confident we are going to obtain a plaintiffs verdict in this case.”

Wyoming Valley Health Care System and Wilkes-Barre General Hospital’s attorney, William J. Aquilino of Perry Law Firm in Scranton, said he thought his clients and hospitals across the state would be pleased that the court has not required them to open themselves up to potential lawsuits by patients alleging violations of the Health Insurance Portability and Accountability Act of 1996 and the right to privacy.

Verazin’s attorney, James C. Sargent Jr. of Lamb McErlane in West Chester, Pa., said he felt the Superior Court reached the right conclusion, calling the plaintiffs’ record request “overbroad.”

Sargent’s co-counsel, Maureen M. McBride of Lamb McErlane, said she felt the case hinged on the balancing of interests required by Jones.

Zack Needles can be contacted at 215-557-2493 or Follow him on Twitter @ZNeedlesTLI.

(Copies of the 16-page opinion in Buckman v. Verazin, PICS No. 12-1937, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •