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A doctor testifying as a defense medical expert in a personal injury action should not have to produce records from previous evaluations for the plaintiff’s review, a Pennsylvania Superior Court panel has ruled. In reversing a Philadelphia trial court’s orders in Jones v. Faust, the judges concluded that plaintiff Parrin Jones could have relied on “less intrusive means” in seeking to impeach appellant Dr. Roy Lefkoe’s anticipated testimony. In response to subpoenas by Jones for the records, the panel’s opinion states, the trial court ordered co-appellant Medical Evaluation Specialists to provide Jones with three months’ worth of medical reports with the patients’ names redacted and, later, with one year’s worth of Lefkoe’s reports. According to its Web site, MES was founded “to provide the claims community with access to physicians with expertise in conducting independent medical examinations and peer reviews.” In its final order, according to the opinion, the trial court also sanctioned MES and Lefkoe for not complying with the previous orders. Jones’ attorney in the matter, solo practitioner Allen Feingold of Philadelphia, said that he had hoped to examine Lefkoe’s track record as a medical expert for the defense in past cases. Noting in a footnote that the trial court’s second order concerning the past evaluations imposed no redaction provision, the panel found that the patients whose records would be produced had a privacy interest in the disclosure thereof. “The interest here, a collateral evidentiary one, is not so weighty as to overbalance the need for confidentiality,” Senior Judge Frank J. Montemuro Jr. wrote. Montemuro was joined by Judge Correale F. Stevens and Senior Judge John T.J. Kelly Jr. According to the Superior Court’s docket, the trial court in the case was presided over by Philadelphia Common Pleas Judge Howland W. Abramson. Feingold said that in his experience, Abramson’s orders were not unique and that he has not been involved in a case in which a similar order was appealed. “At one time or another,” Feingold said, “just about every judge in Philadelphia common pleas discovery court has entered a similar order in cases where I’ve represented the plaintiff.” According to the opinion, Jones and his wife, Sheila, had sued defendant Shawn Faust for injuries stemming from a car accident. Feingold said that his client, a 40-year-old resident of Philadelphia at the time of the trial in Jones, suffered a torn rotator cuff and a year’s loss of work as a result of the accident. (The case concluded with a defense verdict this past winter, he said.) After being sued, Faust retained Lefkoe to perform an independent medical examination of Jones, the opinion states. Jones subpoenaed Lefkoe and MES to produce a number of medical records from past evaluations by Lefkoe. In early May 2003, the trial court ordered MES to provide Jones with three months’ worth of medical reports with the patients’ names redacted, according to the opinion. An order from that July directs MES to pay a fine, and a second July order requires MES to provide one year’s worth of Lefkoe’s reports to Jones and fines Lefkoe and MES for failure to observe the previous orders. After determining that MES and Lefkoe’s claims were both timely and appealable, the panel turned to the appropriateness of Abramson’s orders, specifically, the fine Lefkoe was directed to pay. The judges noted that Abramson’s first two orders concerning the records mention only MES, while Lefkoe was not personally named until the final order. “As these [orders'] texts make clear,” Montemuro wrote, “Dr. Lefkoe was sanctioned for failure to comply with two orders which never mentioned him. Since Dr. Lefkoe has never been ordered to do anything, punishing him for noncompliance seems Orwellian at best, making nonsense of the standards to be applied in determining the propriety of such a sanction.” Addressing the privacy and confidentiality issues raised by Abramson’s orders, Montemuro wrote that the doctor/patient privilege extends only to information directly relating to the patient’s communication, and that in this case, ostensibly, testing the credibility of a doctor’s response to what the plaintiff claims are objective signs of injury would not have involved the disclosure of the patients’ communications. The panel further concluded that the records sought by Jones are germane to the issue of Lefkoe’s bias. “It is at this point that the question arises as to what degree of privacy and confidentiality is to be afforded medical information where no privilege is involved,” Montemuro wrote. The judges called attention to the fact that Pennsylvania’s Supreme Court has ruled more than once that the right to privacy is not unqualified, and must be balanced against competing private and state interests. “The information sought is for impeachment purposes,” Montemuro wrote, “an objective which could be accompanied by other, less intrusive means, e.g., the contrary testimony of another physician, or even by questions as to how many cases the doctor has seen, and of those how many have received diagnoses of minimal injury or none.” The court reversed all three of Abramson’s orders and vacated the accompanying sanctions. Feingold said that Jones plans to appeal the panel’s decision. He also said that his subpoenaing of Lefkoe’s records was part of a strategy to avoid expensive experts’ fees. “I’m trying to find ways to impeach the doctor without having to bring in an orthopedic surgeon,” Feingold said. Both Feingold and Lefkoe and MES’ attorney, Robert Dennison of Reger & Rizzo in King of Prussia, said that in their experiences, motions to produce an expert’s records from past evaluations are made regularly. Both attorneys also said that such orders are typically sought in personal injury actions. Dennison, who said such an order has never been imposed in a case he has handled, said that the opinion could have “a heavy impact.” “I think this sends a message that if you want to obtain access to unrelated parties’ records, you better have a good reason for it,” Dennison said. Faust was represented in the case by James Barlow of Jacobs & Associates in Philadelphia. He could not be reached for comment.

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