The full case caption appears at the
end of this opinion. � 1 Appellant, George Kuney, appeals the August 4, 1999 Order grantingsummary judgment in favor of appellee, Steven Silber, M.D. Appellantargues the trial court erred in limiting his right to obtain the depositiontestimony of Dr. Silber and, thus, precluded him from obtaining thediscovery he argues is necessary to proceed with the case. � 2 The underlying incident in this medical malpractice action involvesappellant’s ex-wife, who received treatment from appellee during hermarriage to appellant. After her treatment began in April 1995, appellant’swife became addicted to the various medications prescribed by appellee.Thereafter, in September 1995, appellant’s wife left him and their childrenand, on May 22, 1996, they were divorced. Appellant instituted an actionagainst appellee, alleging loss of consortium, intentional interference witheconomic relations and negligence.
[FOOTNOTE 1] Appellee’s motion for summaryjudgment was granted and this timely appeal followed. � 3 On appeal, appellant presents one question for our review, “Did thelower court err in limiting the rights of [appellant] to obtain depositiontestimony of [appellee] Dr. Silber and thereby preclude [appellant] fromgoing forward on the case?” (Appellant’s Brief at 2.)
Summary judgment is proper when the pleadings,depositions, answers to interrogatories, andadmissions on file, together with any affidavits, showthat there is no genuine issue as to any material factand that the moving party is entitled to judgment asa matter of law. A material fact is one that directlyaffects the outcome of the case. Our scope of reviewof a trial court Order granting summary judgment isplenary. … In reviewing the order, we must examinethe record in the light most favorable to the adverseparty and determine whether the moving party hasestablished that no genuine issue of material factexists and that it is entitled to judgment as a matterof law. We will overturn a lower court’s entry ofsummary judgment only if there has been an error oflaw or a clear abuse of discretion.
Stevens Painton Corp. v. First State Ins. Co., 746 A.2d 649, ___, 2000Pa. Super. LEXIS 193, **9-10 (Pa. Super. 2000). � 4 Appellant contends the deposition testimony of appellee was notprotected by the physician-patient privilege because the proposed testimonydid not tend to blacken the character of his ex-wife. In addition, he claimsthe privilege does not apply because his wife is a plaintiff in this action.[FOOTNOTE 2] Appellee argues that, because the requested information pertained to thepsychiatric treatment of appellant’s ex-wife, who is an involuntary plaintiff tothe case and has not consented to any discussion of her medical treatment,he was required to abide by the statutory physician-patient privilege. Thephysician-patient privilege provides:
No physician shall be allowed, in any civil matter, todisclose any information which he acquired inattending the patient in a professional capacity, andwhich was necessary to enable him to act in thatcapacity, which shall tend to blacken the character ofthe patient, without consent of said patient, exceptin civil matters brought by such patient, for damageson account of personal injuries.
42 Pa.C.S.A. � 5929, Physicians not to disclose information. “Thestatute was designed to create a confidential atmosphere in which a patientwill feel free to disclose all possible information which may be useful inrendering appropriate treatment.” Miller Oral Surgery, Inc. v. Dinello,611 A.2d 232, 235 (Pa. Super. 1992). � 5 In this case, appellant’s complaint alleges “[a]s a result of the drugsgiven to [appellant's ex-wife] and/or prescribed for her by [appellee], [she]became addicted and/or dependant upon said drugs so as to emotionallyand/or psychiatrically become dysfunctional and engage in bizarre, unciviland harmful behavior” (Complaint, 12/15/97, � 7 at 3). Appellant identifiedthe prescribed medications as “Seldane, [Z]oloft, Serevent, Nasacort,Azmacort, Flexeril, Propulsi[d], Zantac and Ionamin” (id., � 6 at 2-3).Furthermore, he claimed “[a]s a result of the foregoing dispensing ofmedications and/or drugs, all of which was done in a negligent and/orreckless manner, the involuntary plaintiff … has sustained injury in that hermental process and emotional well-being have been diminished, damagedand/or compromised…” (id., � 17 at 4). During discovery, appellee refusedto answer questions regarding his treatment of appellant’s ex-wife aftercounsel advised him of his duty to protect the confidences of his patient.Appellant’s motion to compel appellee to answer the questions was deniedby the court on April 22, 1999. Thereafter, appellant was unable to obtainan expert report analyzing and rendering an opinion on appellee’s care andtreatment of his ex-wife. As a result, the trial court found appellant wasunable to prove appellee’s conduct fell below the accepted standard of careand granted summary judgment in favor of appellee. See Trial CourtOpinion, Lachman, J., 8/4/99, at 2. � 6 In light of the record, it is clear the requested deposition testimonyinvolves information obtained from appellant’s ex-wife, which tends toblacken her character, and, thus, is protected by the physician-patientprivilege. Appellant’s cause of action focuses on the physical, mental andemotional condition of his ex-wife, who, according to his complaint, engagedin bizarre and harmful behavior. In addition, if appellee were forced todivulge the nature of his care of appellant’s ex-wife, the depositiontestimony surely would involve intimate information gathered from herduring the course of her treatment. See In re June 1979 AlleghenyCounty Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980)(privilege is limited to information which would offend its rationale, i.e.,information directly related to patient’s communication to physician). � 7 Appellant’s reliance on Commonwealth ex rel. Platt v. Platt, 404A.2d 410 (Pa. Super. 1979), for the proposition that testimony relating topsychiatric treatment does not tend to blacken one’s character, is misplaced.In Platt, this Court had to determine whether testimony of a treatingpsychiatrist in an involuntary commitment proceeding violated the physician-patientprivilege. We stated, “[s]ince psychiatric treatment does notevidence the existence of a loathsome disease, evidence of such treatmentcould not blacken the reputation of one who has sought it for only evidenceof such a disease would tend to blacken a person’s reputation.” Id. at 415,citing In re “B”, 482 Pa. 471, 394 A.2d 419 (1978). Furthermore, we foundthe Mental Health Procedures Act requires the testimony of the psychiatristwho examined the patient to be committed and, because the Act waspromulgated subsequent to the statutory physician-patient privilege, wegave it preference. Platt, supra at 415. Thus, this Court held, “the saidAct is a special provision requiring the testimony of the physician whotreated the patient, which special provision controls the general physician-patientstatute and constitutes an exception thereto….” Id. � 8 This case is clearly distinguishable from Platt, in that the treatment ofappellant’s ex-wife was not exclusively psychiatric in nature. In this case,appellee is an internal medicine doctor, with a specialty in lipidology, whichis the treatment of patients with abnormal cholesterol and fat levels(Deposition of Steven Silber, 3/16/99, at 11). The medications prescribedby appellee included an appetite suppressant (Ionamin), asthma medications(Seldane, Serevent and Azmacort), an allergy medication (Nasacort), amuscle relaxant (Flexeril), acid indigestion medications (Zantac andPropulsid) and an antihistamine (Seldane). The only medication prescribedto treat an emotional condition is Zoloft, which is an anti-depressant. Inlight of this evidence, we cannot apply the rationale of Platt. � 9 It is well settled that a plaintiff in a medical malpractice action is”required to present an expert witness who will testify, to a reasonabledegree of medical certainty, that the acts of the physician deviated fromgood and acceptable medical standards, and that such deviation was theproximate cause of the harm suffered.” Mitzelfelt v. Kamrin, 526 Pa. 54,62, 584 A.2d 888, 892 (1990). In this case, appellant did not submit anexpert report and, thus, could not prove appellee’s conduct fell below theaccepted standard of care or that appellee’s conduct was the proximatecause of his injuries. The trial court, therefore, did not commit an error oflaw or abuse of discretion in granting summary judgment in favor ofappellee. � 10 Order affirmed. :::FOOTNOTES::: FN1 Benjamin Franklin Clinic and Pennsylvania Hospital were defendants toappellant’s cause of action. On March 3, 1998, however, the trial courtsustained their preliminary objections and dismissed them from the action. FN2 Pennsylvania Rule of Civil Procedure 2227, Compulsory Joinder, allows aparty to be joined to a cause of action when his or her rights are soconnected with the claims of the litigants that no relief can be grantedwithout infringing upon those rights. See Hubert v. Greenwald, 743 A.2d977 (Pa. Super. 1999) (absence of an indispensable party renders anydecree or order in the matter void for lack of jurisdiction). Appellant’s ex-wifeis an involuntary plaintiff to this action, as her whereabouts areunknown at this time. As a result of her disappearance, appellant’s ex-wifehas not been served with notice of this proceeding and, thus, has notparticipated. In his complaint, appellant acknowledges that no cause ofaction is pled on his ex-wife’s behalf (Complaint, 12/15/97, Paragraph 15 at4). Appellant does not cite to any authority for his contention that his ex-wife’sstatus as an involuntary plaintiff waives her protection under thephysician-patient privilege. This Court, therefore, will not allow appellant touse the Compulsory Joinder rule for the purpose of circumventing thestatutory privilege.
Kuney v. Benjamin Franklin Clinic 2000 PA Super 129 GEORGE KUNEY, FORMER HUSBAND OF ADRIENNE KUNEY, ADRIENNE KUNEY (INVOLUNTARY PLAINTIFF) FORMER WIFE OF GEORGE KUNEY, Appellants v. BENJAMIN FRANKLIN CLINIC, DR. STEVEN SILBER, AND PENNSYLVANIA HOSPITAL, Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2702 EDA 1999 Appeal from the Order in the Court ofCommon Pleas of Philadelphia County, Civil Division, No. 1351 SEPTEMBER TERM 1 BEFORE: MCEWEN, P.J., JOYCE and TAMILIA, JJ. OPINION BY TAMILIA, J. Filed: April 25, 2000
