A Pennsylvania doctor being sued for malpractice may see the confidential settlement plaintiffs struck with a New Jersey hospital in a related case, a Northumberland County judge has ruled in an apparent issue of first impression.

But the settlement isn’t relevant — or discoverable — unless the jury finds the doctor liable, the judge said.

Milton, Pa., doctor Barclay M. Wilson had argued he may be entitled to a set-off of any amount the plaintiff’s estate already recovered in a settlement with Kennedy Memorial Hospital because that would make him a joint tortfeasor.

But Court of Common Pleas Judge Charles H. Saylor decided that a set-off determination would only be relevant if a judge or jury does, indeed, find Wilson to be a tortfeasor.

At that time, Saylor indicated the court would review the settlement agreement to determine if Wilson is entitled to a set-off or contribution.

For now though, the defendant and the court won’t be reviewing the settlement agreement, either in open court or in camera.

Faced with the same issue, courts in other jurisdictions have taken the following three legal approaches, according to Saylor: allowing discovery to the settlements as of right; ruling that confidential settlements agreements are not to be discoverable at all because of privacy concerns; and balancing the interests of all parties to reach a fair conclusion.

For Witman v. Wilson, Saylor chose the last one.

He applied the balance guided by language set forth in the Uniform Contribution Among Tortfeasors Act (UCATA), which Saylor added could very well affect a payout if a jury were to side with the plaintiff.

The case is being brought by Joyce Witman, who is the administratrix of Dawn Witman’s estate. Dawn Witman died at age 28 after both Kennedy Memorial, the first defendant, and Wilson, the defendant doctor in the instant suit, failed to diagnose the infection that afflicted Dawn Witman and allegedly was a factor in her death.

“The importance of the particular language of the settlement agreement entered into by [Joyce Witman] and Kennedy Memorial Hospital is plainly evident in view of the provisions of the UCATA,” Saylor said. “Although the UCATA puts the wording of the agreement between [Joyce Witman] and Kennedy Memorial Hospital in issue, it is still clear that a jury must find Dr. Wilson liable before the wording of the confidential settlement agreement becomes significant for the purposes of [the UCATA].”

The estate settled with Kennedy Memorial in June 2011, around the same time it took one of the hospital’s doctors to trial, according to plaintiffs counsel. That doctor, Robert Gordon, was found to be negligent but the New Jersey jury further found his negligence was not a factual cause of Dawn Witman’s death.

Saylor also weighed in on Wilson’s argument that the estate may have already been fully compensated by the settlement, calling the position “premature.” The judge questioned how that could be determined without the help of a jury.

“The evaluation of the claim’s worth is certainly more of an art, and no one can be absolutely sure that the prior settlement would have completely satisfied the claim,” Saylor said. “Clearly, it is up to the jury or fact-finder to value the plaintiff’s claim by determining the amount of damages the [estate] is entitled to by applying the appropriate law to the evidence presented.”

At this stage in the game, Saylor said all that could be gained by ordering the disclosure of the settlement agreement would be in assisting defense counsel and Wilson’s insurer in making a settlement offer “based on their subjective view of the total value of the plaintiff’s claim.”

“Such an interest is not sufficient to override the privacy interest embodied in the confidential settlement agreement involving a third party in another state,” he added.

Reached for comment, both the estate’s attorney and the doctor’s attorney said they were satisfied with Saylor’s ruling.

For Irene McLafferty, of Messa & Associates in Philadelphia, the fact that the case marked an issue of first impression was somewhat surprising. But at the same time, the attorney added that most defendants don’t usually litigate the settlement discovery issue.

“They’ve wanted it and we’ve said no and they haven’t pushed it,” McLafferty said, referring to other cases with which she’s been involved.

Michael M. Badowski, of Margolis Edelstein in Camp Hill, Pa., called Saylor’s approach “reasonable,” crediting the jurist for “conscientiously trying to make the right decision.”

One issue upon which the court did not touch, Badowski said, was summary dismissal. Badowski said he argued the language in the settlement could provide the defense with a basis to secure his client’s dismissal from the case.

“But I understand where [Saylor] is coming from and he wants to give plaintiffs their day in court,” Badowski said.

Looking ahead, the issue of whether any mention of the other doctor or the settlement itself would make it before the jury would likely also receive some play.

McLafferty said the defense has produced no expert reports regarding the liability of Gordon, the other doctor. The attorney said the defense would need to introduce that type of evidence before arguing liability before the jury.

“They can’t assign liability to [Kennedy Memorial and Gordon] without evidence,” McLafferty said.

Joyce Witman has brought the action in her own right and as administratrix of the estate.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

 (Copies of the six-page opinion in Witman v. Wilson, PICS No. 12-2206, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •