[J-62-2023]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

     TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.


 BOBBI ANN MERTIS AND JOSEPH                     :   No. 31 MAP 2023
 MERTIS                                          :
                                                 :   Appeal from the Order of the
                                                 :   Superior Court dated August 2,
              v.                                 :   2022, reconsideration denied
                                                 :   October 17, 2022, at No. 1547 MDA
                                                 :   2021, Reversing the Order of the
 DONG-JOON OH, M.D., NORTH                       :   Luzerne County Court of Common
 AMERICAN PARTNERS IN ANESTHESIA                 :   Pleas, Civil Division, dated October
 (PENNSYLVANIA), LLC, WILKES-BARRE               :   28, 2021 at No. 9655 of 2017 and
 HOSPITAL COMPANY, LLC D/B/A                     :   Remanding.
 WILKES-BARRE GENERAL HOSPITAL                   :
 AND COMMONWEALTH HEALTH                         :   ARGUED: October 17, 2023
                                                 :
                                                 :
 APPEAL OF: DONG-JOON OH, M.D.                   :

OPINION

JUSTICE MUNDY                                                  DECIDED: June 18, 2024
      We granted allowance of appeal to consider the application of Pennsylvania Rule

of Civil Procedure 4003.6, which provides:

                   Rule 4003.6. Discovery of Treating Physician

             Information may be obtained from the treating physician of a
             party only upon written consent of that party or through a
             method of discovery authorized by this chapter. This rule shall
             not prevent an attorney from obtaining information from

                    (1) the attorney’s client,

                    (2) an employee of the attorney’s client, or

                    (3) an ostensible employee of the attorney’s client.
Pa.R.Civ.P. 4003.6. Specifically, we must determine whether the first exception to Rule

4003.6 (client exception) permits an attorney to obtain information outside the discovery

process from one of the plaintiff’s nonparty treating physicians, who becomes the

attorney’s client after another attorney in the same law firm became previously engaged

to represent a named defendant physician in the same medical malpractice action.

Because we conclude that Rule 4003.6 precludes a law firm representing a defendant

treating physician from obtaining information outside the discovery process from a

nonparty treating physician by subsequently entering into an attorney-client relationship

with the nonparty treating physician, we affirm the Superior Court.

                      I. FACTUAL AND PROCEDURAL HISTORY

       On August 16, 2017, Bobbi Ann Mertis filed a medical malpractice action against

Dr. Dong-Joon Oh, North American Partners in Anesthesia (Pennsylvania), LLC (NAPA),

Wilkes-Barre Hospital, and Commonwealth Health.           The complaint alleged Dr. Oh

negligently administered a femoral nerve block to anesthetize Mertis’s knee prior to her

August 17, 2015 ACL reconstruction surgery, which caused a femoral nerve injury. Dr.

Oh retained James Doherty, Esq. and Grace Doherty Hillebrand, Esq. from the law firm

of Scanlon, Howley & Doherty (Scanlon Howley) to represent him.             In April 2018,

attorneys Doherty and Doherty Hillebrand entered their appearance for Dr. Oh and his

employer, NAPA.

       On July 27, 2020, Mertis, represented by Angelo Theodosopoulos, Esq., served a

subpoena on Dr. Eugene Kim, the orthopedic surgeon who performed Mertis’s knee

surgery, to appear at a discovery deposition.      Mertis had not named Dr. Kim as a

defendant, although some of the complaint’s allegations were critical of the care he

provided. See Second Am. Compl., 3/30/18, at ¶¶ 30, 42 (asserting “Dr. Kim did not

identify an anesthetic plan for the procedure,” and Dr. Kim did not warn Mertis of the risks




                                      [J-62-2023] - 2
of femoral nerve blocks). Additionally, the complaint alleged that “Dr. Kim told Mrs. Mertis

that the likely cause of her [post-operative] symptoms was the femoral nerve block.” Id.

at ¶ 78. After receiving the subpoena, Dr. Kim asked his professional liability insurer to

assign Kevin Hayes, Esq. of Scanlon Howley to represent him in this case because Hayes

had previously represented Dr. Kim in an unrelated malpractice case. Scanlon Howley

informed Dr. Kim that it was already representing Dr. Oh in the matter, and Dr. Kim signed

a waiver of any potential conflict of interest. On August 28, 2020, Attorney Hayes then

sent an email to Attorney Theodosopoulos stating Dr. Kim had retained him and

requesting to reschedule Dr. Kim’s deposition.          Attorney Theodosopoulos did not

respond, and the deposition was not rescheduled.

       On February 8, 2021, Attorney Hayes attended a deposition of a non-party

anesthesiology witness, Dr. Anupama Singh. The deposition transcript indicates that

Attorneys Hayes and Doherty Hillebrand appeared as counsel for Dr. Oh and NAPA. See

Singh Deposition Transcript, 2/8/21 (R.R. at 90a). That same day, after Dr. Singh’s

deposition, Attorney Theodosopoulos sent a letter to Attorney Hayes, stating in part:

              I was surprised when, on August 28, 2018 [sic], you contacted
              me to advise you represented the plaintiff’s treating,
              orthopedic surgeon, Eugene Kim, M.D., in this case
              (correspondence included).     Your law firm was never
              authorized to contact and speak to Dr. Kim.

                      You also showed up to today’s 11:00 a.m. [Z]oom
              deposition at 11:20 a.m. for Dr. Oh on behalf of Grace Doherty
              Hillebrand and your firm. Before you left the proceeding at my
              insistence, you told me you already spoken [sic] to the
              plaintiff’s treating surgeon, Dr. Kim, in connection with this
              case.

                     Your law firm has a clear conflict in continuing to
              represent the defendant anesthesiologist and plaintiff’s
              treating orthopedic surgeon. From today’s occurrence, it is
              also clear that your firm has not set up and communicated to




                                      [J-62-2023] - 3
              each other any sort of “Chinese Wall” to isolate and prevent
              communications between yourself and Mrs. Hillebrand.
Theodosopoulos’s Letter to Hayes, 2/8/21, at 1 (R.R. at 93a). Attorney Theodosopoulos

also sent a materially identical letter to Attorney Doherty Hillebrand. Theodosopoulos’s

Letter to Doherty Hillebrand, 2/8/21, at 1 (R.R. at 96a). Neither Attorney Hayes nor

Attorney Doherty Hillebrand responded to these letters.

       On April 16, 2021, Mertis filed a motion for sanctions to disqualify defense

counsel—identified as Attorneys Brian Dougherty, James Doherty, Grace Doherty

Hillebrand, Kevin Hayes, and the law firm Scanlon Howley—from representing Dr. Oh

and to bar defense counsel’s further ex parte communication with Dr. Kim. Relevant to

this appeal, Mertis argued that the attorneys from Scanlon Howley should be disqualified

from this case for violating Rule 4003.6 by ex parte communicating with Dr. Kim. Mot. for

Sanctions, 4/16/21, at ¶¶ 36-39 (R.R. at 20a-21a). The trial court held argument on the

motion at which Attorney Hayes argued there was no violation of Rule 4003.6 because it

contains an exception permitting an attorney to communicate with a treating physician

who is the attorney’s client. N.T., 8/4/21, at 10 (R.R. at 253a). Further, Attorney Hayes

highlighted that Dr. Kim reached out to him to seek representation in response to receiving

a subpoena. Id. Attorney Hayes also contended that “Rule 4003.6 was not only intended

to protect patient’s [sic] rights of the Plaintiff, but also the rights of Dr. Kim [to] have

representation at a deposition in the case where his treatment has been impugned.” Id.

at 11 (R.R. at 253a).

       Regarding his appearance at Dr. Singh’s Zoom deposition, Attorney Hayes

explained that based on his relative technological proficiency, the law firm’s staff asked

him to get on the Zoom call to notify the attendees that Attorney Doherty Hillebrand would

be late because she was involved in another deposition. Id. at 28-29 (R.R. at 257a).

Attorney Hayes represented that the deposition did not start, and his involvement was



                                      [J-62-2023] - 4
limited to notifying everyone that Attorney Doherty Hillebrand would be joining the

deposition when she became available. Id. at 29 (R.R. at 257a). Further, Attorney Hayes

argued that it was improper “to raise whether or not we are properly putting up the

appropriate separations between our clients, because, in any event, we don’t think there’s

a conflict. Even if there was a conflict . . . it’s on us to resolve that conflict, not Plaintiff’s

Counsel, and, respectfully, not the Court.” Id. at 29-30 (R.R. at 257-58a).

       On October 28, 2021, the trial court denied the motion for sanctions, finding no

violation of Rule 4003.6. It explained:

                      [Mertis] has offered nothing more than unfounded
               accusations and conclusions concerning the nature and
               extent of Mr. Hayes’ communications with Dr. Kim and Mr.
               Hayes’ involvement in the defense of Dr. Oh. There is no
               evidence to suggest that Attorney Hayes was ever involved in
               the representation of Dr. Oh or that Grace [Doherty Hillebrand]
               or James Doherty have had any communications with Dr. Kim
               or were involved in the representation of Dr. Kim in anyway.

                      Counsel for Dr. Oh did not seek out Dr. Kim to
               communicate about [Mertis]. Rather, upon service of the
               subpoena to attend and testify at a deposition, Dr. Kim asked
               his insurance carrier to appoint Mr. Hayes to represent him for
               the deposition.
Tr. Ct. Op., 2/17/22, at 4-5. Based on its conclusion that defense counsel had not violated

Rule 4003.6, the trial court denied Mertis’s motion for sanctions. Mertis timely appealed

to the Superior Court. 1

       In a unanimous published opinion, the Superior Court reversed the trial court and

remanded. Mertis v. Oh, 

 (Pa. Super. 2022). The Superior Court noted

1 As additional grounds for disqualification, Mertis had argued that defense counsel’s

concurrent representation of Dr. Oh and Dr. Kim violated Pennsylvania Rule of
Professional Conduct 1.7(a), which prohibits a lawyer from undertaking representation of
a client that involves a concurrent conflict of interest. Motion for Sanctions, 4/16/21, at
¶¶ 40-52 (R.R. at 21a-23a). The trial court rejected Mertis’s Rule 1.7 argument, and
Mertis did not appeal that aspect of the trial court’s order.


                                         [J-62-2023] - 5
that an order denying a motion to disqualify a law firm from litigation is immediately

appealable as a collateral order, its scope of review for disqualification orders is plenary,

and its standard of review for interpreting the Rules of Civil Procedure is de novo. 

 at

535 n.1 (citing Rudalavage v. PPL Elec. Utils. Corp., 

, 478 (Pa. Super. 2002),

and Pa.R.A.P. 313 (regarding collateral orders)); id. at 535 n.2 (citing Rudalavage, 268

A.3d at 478 (providing scope of review), and Brown v. Quest Diagnostics Clinical Labs,

Inc., 

 (Pa. Super. 2019) (stating standard of review)).

       Examining Rule 4003.6, the court noted it is a general rule prohibiting ex parte

communications between opposing counsel and a party’s treating physician, which

“implicitly recognizes the privacy interest underlying the physician-patient relationship and

the physician’s duty of loyalty to the patient.” 

 at 536 (citing Marek v. Ketyer, 

 (Pa. Super. 1999), appeal denied, 

 (Pa. 2000)). It stated that

the rule protects the patient and the physician by permitting opposing counsel to obtain

information from a party’s treating physician only through the party’s written consent or

an authorized method of discovery. 

       The Superior Court further recognized that Rule 4003.6 has three exceptions

permitting the attorney of a treating physician to obtain information from the client or the

client’s actual or ostensible employees who were involved with the patient’s treatment.

 In this case, the court noted the relevant exception is provided in Rule 4003.6(1),

which states that the rule does “not prevent an attorney from obtaining information from

(1) the attorney’s client.” 

 (quoting Pa.R.Civ.P. 4003.6(1)). The Superior Court framed

the issue as whether Scanlon Howley was permitted to have ex parte communications

with Dr. Kim because he was now its client. 

 Finding that Rule 4003.6 “envisioned []

that a different law firm would represent the treating physician,” and not a situation where

the same firm represented multiple treating physicians, the court concluded the Rule




                                      [J-62-2023] - 6
4003.6(1) client exception was inapplicable. 

 The Superior Court then reasoned that

Scanlon Howley’s concurrent representation of Dr. Oh and Dr. Kim was tantamount to ex

parte communication because it provided “the defense access to information that can only

be obtained otherwise through authorized discovery that would be limited to material and

pertinent information preventing breach of the confidential doctor/patient relationship only

to the extent necessary.” 

 The court also concluded that neither Dr. Kim’s request to

his insurer for Attorney Hayes’s appointment nor deference to Dr. Kim’s choice of counsel

could excuse compliance with Rule 4003.6. 

 For these reasons, the Superior Court

found Rule 4003.6 was violated and reversed the trial court. 

       Regarding Mertis’s request for the disqualification of Scanlon Howley based on its

violation of Rule 4003.6, the Superior Court noted “this remedy is warranted under limited

circumstances.” 

 at 537 (citing Rudalavage, 268 A.3d at 478). Because disqualification

is available only when there is no other remedy and it is necessary to ensure a fair trial,

the Superior Court remanded to the trial court to determine the proper remedy for

Appellee’s violation of Rule 4003.6. Id.

                        II. ISSUE AND STANDARD OF REVIEW

       This Court granted allowance of appeal to consider the following issue:

              Whether, in an issue of first impression and significant public
              importance, Pa.R.C.P. 4003.6(1) expressly permits defense
              counsel in a medical malpractice case to speak with plaintiff’s
              treating physicians outside the discovery process in
              circumstances where: (i) Pa.R.C.P. 4003.6(1) expressly
              allows defense counsel to communicate directly with treating
              physicians who are firm clients; and (ii) both treating
              physicians are clients of the law firm in question[.]
Mertis v. Oh, 

, 1204-05 (Pa. 2023) (per curiam).




                                      [J-62-2023] - 7
       This issue presents a legal question regarding the interpretation of our rules of civil

procedure over which our standard of review is de novo and our scope of review is

plenary. Marlette v. State Farm Mut. Auto. Ins. Co., 

 (Pa. 2012).

    III. OBTAINING INFORMATION FROM PLAINTIFF’S TREATING PHYSICIAN

A. PARTIES’ ARGUMENTS

       Dr. Oh (Appellant) argues that the plain meaning of Rule 4003.6 allows an attorney

who represents a treating physician to obtain information from the treating physician

outside of the formal discovery process. Appellant’s Brief at 14. Appellant contends that

Rule 4003.6 is a permissive rule that balances a plaintiff’s medical privacy rights and

counsel’s need to communicate with treating physicians involved in litigation.             

Acknowledging that Rule 4003.6’s general principle is that “information must be obtained

through the discovery process,” Appellant notes the rule contains three exceptions. 

Appellant asserts that the first exception, permitting an attorney to obtain information from

her client, “clearly applies here.” Id. at 15. Appellant insists “[t]here are no restrictions

under this provision with regard to a law firm’s ability to communicate with a treating

physician in such circumstances.” Id.

       Appellant faults the Superior Court for sidestepping Rule 4003.6’s plain language

and concluding that the rule restricts a law firm from obtaining information from treating

physicians who are its clients. Id. Because Rule 4003.6 is unambiguous, Appellant

maintains the Superior Court should not have considered the drafter’s intent or claims of

potential mischief arising from literal application of the rule. Id. at 16. Specifically,

Appellant criticizes the Superior Court’s suggestion that the rule was not intended to cover

situations where the same law firm represents more than one treating physician. Id. at

17. Instead of modifying the rule by judicial fiat, Appellant claims that if our Court needs




                                       [J-62-2023] - 8
to modify the rule to account for this scenario, we should use the ordinary rulemaking

process that involves notice and permits comments from the bench and bar. Id. at 18.

       Appellant further accuses the Superior Court of engaging in improper fact finding

to conclude that he violated Rule 4003.6. Id. at 19. Appellant stresses the trial court

found Mertis did not present any evidence that Appellant’s counsel had ex parte

communications with Dr. Kim about the case. Id. (citing Tr. Ct. Op., 2/17/22). Instead of

crediting this trial court finding, however, Appellant alleges the Superior Court concluded

there were facts that amounted to a violation of Rule 4003.6. Id. at 20. Because there

are no facts of record to support this conclusion, Appellant argues we should reverse the

Superior Court. Id.

       Next, Appellant contends there is no authority to disqualify Scanlon Howley for a

violation of the discovery rules. Id. at 21. Appellant notes that our Court has cautioned

that while disqualification may be necessary to ensure a fair trial, neither trial nor appellate

courts have the authority to impose that punishment for a violation of the Rules of

Professional Conduct, a power reserved to our Court and the tribunals we establish. Id.

at 21-22 (citing Reilly by Reilly v. SEPTA, 

 (Pa. 1985); In re Estate

of Pedrick, 

 (Pa. 1984)). Additionally, Appellant argues the Superior

Court’s conclusion that disqualification may be warranted overlooked Rule of Professional

Conduct 1.7, which permits an attorney to represent two clients whose interests conflict

as long as the clients give their informed consent. Id. at 22. Because Mertis did not prove

an irreconcilable conflict of interest between Dr. Oh and Dr. Kim, Appellant argues that

“the Superior Court’s decision regarding ‘mischief’ that may be created by simultaneous

representation of two treating physicians is speculative and unsupported.” Id. at 23.

       Additionally, Appellant asserts that Mertis waived her right to object to the law

firm’s joint representation of the two treating physicians. Id. Appellant explains that




                                       [J-62-2023] - 9
Scanlon Howley had been representing him since 2018 and Dr. Kim since 2020, but

Mertis waited eight months after learning of the firm’s representation of Dr. Kim to object.

Id. Relying on federal case law, Appellant asserts that a delay in filing a motion to

disqualify is a basis for denial. Id. at 24. Because Mertis’s delay in filing the motion to

disqualify provides an inference that it was filed for tactical reasons, Appellant cautions

us against permitting this “gamesmanship” and maintains we should reverse the Superior

Court. Id. at 25.

       Lastly, Appellant argues we should reverse the Superior Court to reaffirm a

litigants’ right to counsel of their choice. Id. at 26. Appellant recognizes that this right is

not absolute, but it can be superseded only by a serious breach of an ethical or other

duty. Id. Because Dr. Oh’s and Dr. Kim’s choice of counsel should be given deference

and because Mertis “likely filed [the motion to disqualify] for tactical purposes,” Appellant

urges us to reverse. Id. at 27.

       In response, Mertis argues that Scanlon Howley’s ex parte communications with

Dr. Kim violated Rule 4003.6. Mertis’s Brief at 23. Mertis contends the rule embodies

the public policy regarding a patient’s right to privacy in the physician-patient relationship

and the physician’s duty of loyalty to the patient. Id. (citing Marek, 732 A.2d at 1270).

Further, Mertis insists that ex parte communications between defense counsel and a

plaintiff’s treating physician create “the potential for defense counsel to improperly

influence the treating physician,” which is a substantial concern in this case because

Scanlon Howley “manufactured an attorney-client relationship with a treating physician to

control the treating physician’s testimony[.]” Id. at 26-27. Accordingly, Mertis contends

Rule 4003.6 prohibits obtaining information from a patient’s treating physician without

either securing the patient’s written consent or utilizing the formal discovery process. Id.

at 23-24. Mertis argues that Appellant has misinterpreted the plain language of Rule




                                      [J-62-2023] - 10
4003.6. Id. at 30. Mertis notes that in Marek, the Superior Court read Rule 4003.6 as a

broad ban on ex parte communication to protect the patient’s privacy interest and the

physician’s duty of loyalty. Id. (citing Marek, 732 A.2d at 1270). As such, Mertis asserts

that Rule 4003.6 is a restrictive rule.

       Addressing Appellant’s argument that Rule 4003.6’s client exception applies

because Dr. Kim became Scanlon Howley’s client when he retained the firm after he

received the subpoena, Mertis highlights that Scanlon Howley represented only Dr. Oh

and NAPA when Mertis served the subpoena on Dr. Kim. Id. at 28. This timeline, in

Mertis’s view, means that the initial communications between Scanlon Howley and Dr.

Kim, when Dr. Kim was unrepresented, violated Rule 4003.6, and Scanlon Howley’s

subsequent acceptance of representation of Dr. Kim cannot cure the Rule 4003.6

violation. Id. at 28, 30. Mertis insists that “[n]o court has ever held that Rule 4003.6

permits a law firm that represents a defendant in litigation to communicate privately with

a plaintiff’s non-party treating physician, let alone accept representation of the plaintiff’s

physician.” Id. at 29. Mertis further stresses that Dr. Kim’s medical opinions, expressed

to Mertis, were adverse to Dr. Oh because Dr. Kim told Mertis that her injuries were

caused by the femoral nerve block.           Id. Additionally, Mertis reads Rule 4003.6 as

unambiguously providing that “when a law firm already represents a defendant in

litigation, the exception to Rule 4003.6(1) permits that law firm to have ex parte

communications about the Plaintiff with its client[.]” Id. at 32. In Mertis’s view, once

Scanlon Howley undertook representation of Dr. Oh, Rule 4003.6 prohibited Scanlon

Howley from communicating with or representing Dr. Kim. Id. at 33. Moreover, Mertis

claims that permitting Scanlon Howley to take advantage of the client exception would

render Rule 4003.6 meaningless because the firm already had a client in the case and

permitting it to then represent a different treating physician to conduct discovery “is an




                                          [J-62-2023] - 11
absurd result” that this Court did not intend. Id. at 33-34. For these reasons, Mertis

advocates affirmance of the Superior Court’s decision that defense counsel cannot

undertake representation of a plaintiff’s treating physician to justify ex parte

communications with that physician. Id. at 29.

       Refuting Appellant’s accusations that the Superior Court engaged in fact-finding,

Mertis claims there is evidence in the record to support the Superior Court. Id. at 34.

Mertis notes that it is undisputed that Scanlon Howley had ex parte communications with

Dr. Kim about the case before it represented Dr. Kim. Id. Specifically, Mertis explains

the record reflects that Scanlon Howley admitted to advising Dr. Kim that it already

represented Dr. Oh and to informing Dr. Kim of the complaint’s allegations, which led to

Dr. Kim executing a conflict-of-interest waiver. Id. In Mertis’s view, these facts were the

basis of the Superior Court’s conclusion that allowing Scanlon Howley to represent Dr.

Kim in deposition testimony, while at the same time representing Dr. Oh, is the same as

having ex parte communication. Id. at 35 (citing Mertis, 

).

       Next, Mertis argues that the trial court has the authority to determine the

appropriate sanction to remedy Appellant’s violation of Rule 4003.6, which may include

disqualification of counsel. 

 Mertis claims that our Court has held that disqualification

may be necessary to ensure a fair trial. 

 (citing Phila. v. AFSCME, 

 (Pa.

1983); Slater v. Riner, Inc., 

 (Pa. 1975)). In Mertis’s view, “[i]t is simply

incongruent with Pennsylvania law to contend that trial courts do not have the power to

disqualify counsel in order to remedy an egregious discovery violation when trial courts

are already vested with authority to dismiss a claimant’s lawsuit or enter default against

a defendant as a discovery sanction under [Pa.R.Civ.P.] 4019.” Id. at 36. Because Dr.

Kim allegedly has already expressed his medical opinion that the femoral nerve block

caused Mertis’s injuries, Mertis notes the risk that private communications between




                                     [J-62-2023] - 12
Scanlon Howley as defense counsel and Dr. Kim may be used to influence Dr. Kim’s

testimony or dissuade Dr. Kim from testifying. Id. at 37. Further, Mertis argues the cases

Appellant cited regarding courts’ authority to disqualify counsel for violations of the Rules

of Professional Conduct are inapt because Mertis is not relying on those rules. Id. at 38.

Because the harm to Mertis’s privacy interests cannot be undone, she contends

disqualification may be an appropriate remedy.

       Addressing waiver, Mertis argues her delay between learning Scanlon Howley did

not “erect a conflict wall” to screen Attorney Hayes from Dr. Oh’s representation and

bringing the motion to disqualify was not long enough to waive her rights. Id. at 39-40.

Mertis insists she raised her objection “immediately after confirming ex parte

communications occurred without any conflict wall in place” and “gave Scanlon Howley

six weeks to correct their violation before filing her [m]otion.” Id. at 41. Accordingly, Mertis

maintains any alleged delay is not sufficient to find waiver.

       Refuting Appellant’s choice of counsel argument, Mertis acknowledges that the

right to counsel is absolute, but the right to a particular counsel is not absolute and must

be balanced with competing interests. Id. at 44-45. Mertis contends that disqualifying

Scanlon Howley would not violate either physician’s right to counsel. Id. at 45. If the trial

court concludes that Scanlon Howley’s conduct impedes due process or fundamental

fairness or violates the Rules of Professional Conduct, Mertis argues the trial court could

disqualify the firm. Id. at 46, 48. Mertis further asserts that a violation of Rule 4003.6

may threaten due process or fundamental fairness. Id. at 48 (citing Marek, 733 A.3d at

1268 (awarding a new trial for a Rule 4003.6 violation); Jakobi v. Ager, 45 Pa.D.&C.4th

189, 195 (C.P. Phila. 2000) (disqualifying law firm based on a Rule 4003.6 violation)).

Accordingly, Mertis agrees with the Superior Court’s decision to remand for the trial court

to determine an appropriate remedy for the Rule 4003.6 violation, which will allow the trial




                                       [J-62-2023] - 13
court to “determine the information gleaned from Scanlon Howley’s improper contact with

Dr. Kim and fashion an appropriate remedy, which may include disqualification, mindful

of the fact that all parties including Dr. Oh’s co-defendants are entitled to a fair trial that

due process requires.” Id. at 50 (emphasis in original).

       In his reply brief, Appellant maintains this case is resolved by the plain language

of Rule 4003.6, which “expressly allows” Scanlon Howley’s attorneys to communicate

with Dr. Kim and Dr. Oh outside of the discovery process. Appellant’s Reply Brief at 1.

Appellant criticizes Mertis for not explaining how the Superior Court’s interpretation of

Rule 4003.6 is supported by the rule’s plain language. Id. at 2. Moreover, Appellant

notes that Mertis did not claim that Rule 4003.6(1) is ambiguous, and instead resorted to

raising other issues, such as the timing of Dr. Kim’s retention of the firm, whether one law

firm can represent more than one treating physician in the same case, and the necessity

of conflict walls. Id. at 3. Appellant insists that Mertis’s public policy arguments cannot

supersede the rule’s plain language. Id. Additionally, Appellant points out that none of

the cases Mertis cited involve the Rule 4003.6(1) client exception where a law firm

represents two treating physicians. Id. at 5-6. Accordingly, Appellant maintains we

should reverse the Superior Court “[b]ecause [Merits] either asks this Court to ignore the

plain meaning of Rule 4003.6 or to create a rule that does not exist, in a manner that

would destroy the delicate balance between patient privacy and access to information

from treating physicians[.]” Id. at 7.

       Appellant next argues that Mertis did not refute his argument that the Superior

Court engaged in improper fact-finding when it found a violation of Rule 4003.6 without

an evidentiary record. Id. at 8. Appellant reminds that the trial court found Mertis adduced

no facts to show the nature or extent of Attorney Hayes’s communications with Dr. Kim

or of his involvement in Dr. Oh’s defense. Id. Because there is no support in the record




                                         [J-62-2023] - 14
for Mertis’s allegation that any of the firm’s attorneys engaged in substantive discussions

with Dr. Kim before Dr. Kim retained the firm, Appellant maintains that we should reverse

the Superior Court. Id. at 8.

       Even if Mertis’s Rule 4003.6 interpretation prevails, Appellant asserts that it does

not follow that disqualification is the appropriate remedy. Id. at 9. Appellant reiterates his

waiver argument, claiming there is no justification for the six-month delay in filing the

motion for disqualification. Id. Further, Appellant maintains that Rule 4003.6, as a

discovery rule, does not prohibit the same law firm from representing a physician-

defendant and a non-party physician in the same case, nor does Rule 4003.6 include

disqualification as a remedy. Id. at 10-11. Lastly, even though Appellant acknowledges

that disqualification may be necessary to ensure a fair trial, he argues there is no evidence

to support Mertis’s claim that Scanlon Howley’s conduct undermines her due process

rights. Id. at 12-13. Accordingly, Appellant urges us to reverse the Superior Court based

on Rule 4003.6’s plain language. Id. at 13.

B. DISCUSSION

       Rule 4003.6 governs obtaining information from a party’s treating physician and

provides, as set forth above, as follows:

                      Rule 4003.6. Discovery of Treating Physician

              Information may be obtained from the treating physician of a
              party only upon written consent of that party or through a
              method of discovery authorized by this chapter. This rule shall
              not prevent an attorney from obtaining information from

                      (1) the attorney’s client,

                      (2) an employee of the attorney’s client, or

                      (3) an ostensible employee of the attorney’s client.
Pa.R.Civ.P. 4003.6.



                                       [J-62-2023] - 15
       Our Court adopted Rule 4003.6 outside of the ordinary rulemaking publication

process on April 29, 1991, explaining “[w]hereas publication of proposed rulemaking

would otherwise be required, it has been determined under Rule of Judicial Administration

103(a)(3) that the immediate promulgation of [Rule 4003.6] is required in the interest of

justice and efficient administration,” and the rule became effective on July 1, 1991.

21 Pa.B. 2337 (May 18, 1991) (per curiam order).

       Preceding Rule 4003.6’s adoption, our trial courts had disapproved of

unauthorized ex parte contacts between defense counsel and a plaintiff’s treating

physician in a line of cases beginning with Alexander v. Knight, 25 Pa.D.&C.2d 649 (C.P.

Phila. 1961), aff’d per curiam, 

 (Pa. Super. 1962). The Alexander Court

reasoned that a physician, who is in a confidential and fiduciary relationship to a patient,

owes the patient a “duty of total care,” which includes a duty to assist the patient in

litigation and refuse to help the opposing party. Alexander, 25 Pa.D.&C.2d at 655. While

the physician also “owes a duty to conscience to speak the truth; he need, however, speak

only at the proper time.” 

 Based on this, the Alexander Court condemned the defense

representative, a physician employed by the defense to interview plaintiffs’ physicians

and to secure a report, for inducing the plaintiff’s treating physician to breach his

confidential relationship to his patient by giving a report to defense counsel without his

patient’s permission. 

 Several trial court decisions followed Alexander’s refusal to

permit ex parte contact between defense counsel and the patient’s treating physician,

emphasizing a physician’s duty of confidentiality to a patient. See Hoffmeyer v. Pell, 23

Pa.D.&C.3d 448, 453-54 (C.P. Somerset 1982) (denying the defense’s request for an ex

parte interview with the plaintiff’s treating physician and noting that formal deposition

protects the patient and the physician); Freyer v. Travelers Indem. Co., 15 Pa.D.&C.3d

649, (C.P. Westmoreland 1980) (rejecting the defendant’s motion to compel the plaintiff




                                     [J-62-2023] - 16
to submit to an examination conducted by the plaintiff’s treating physician due to the

chilling effect on potential patients); Nicholson v. Polcyn Estate, 12 Pa.D.&C.3d 561, 569

(C.P. Lancaster 1979) (recognizing a cause of action against a treating physician for the

unauthorized disclosure of confidential information); Shea v. McCadden, 46 Pa.D.&C.2d

560, 563 (C.P. Del. 1969) (denying defendants request to have the plaintiff submit to an

examination conducted by the treating physician who the defendants subsequently

employed due to the confidential relationship).

       A federal district court, applying Pennsylvania law, predicted that our Court, “if

confronted with the issue, would at least require reasonable notice to a plaintiff or his

counsel before defense counsel may communicate with plaintiff’s treating physician.”

Manion v. N.P.W. Med. Ctr. of N.E. Pa., Inc., 

 (M.D. Pa. 1987)

(emphasis in original). The district court explained that the prohibition on ex parte contact

is rooted in the public policy of protecting the confidentiality of the physician-patient

relationship, and it is distinct from the statutory physician-patient privilege in 42 Pa.C.S.

§ 5929. Id. at 593. Further, the court noted that only the patient can waive the bar on ex

parte communications. Id. at 594. The court found the rationale underlying the ex parte

communication prohibition was persuasive, stating it encourages patients to speak openly

with their physicians, it provides safeguards against the discovery of irrelevant

information, and it avoids the potential for improperly influencing the physician. Id. at 594-

95 (positing that “[a]n unauthorized ex parte interview could disintegrate into a discussion

of the impact of a jury’s award upon a physician’s professional reputation, the rising cost

of malpractice insurance premiums, the notion that the treating physician might be the

next person to be sued, and other topics which might influence the treating physician’s




                                      [J-62-2023] - 17
views.”). Based on the Alexander line of cases, decisions from other jurisdictions, 2 and

the rationale of the prohibition, the Manion Court held that defense counsel must provide

reasonable notice to the plaintiff before contacting the treating physician. Id. at 595.

       The analysis of the Alexander line of trial court decisions and Manion, however,

was subsequently rejected in Holtzman v. Zimmerman, 47 Pa.D.&C.3d 608 (C.P.

Cumberland 1988), and Moses v. McWilliams, 

 (Pa. Super. 1988), allocatur

denied, 

 (Pa. 1989). In Holtzman, the trial court concluded there was no

public policy prohibiting ex parte communication with a treating physician. Holtzman, 47

Pa.D.&C.3d at 626-27. The trial court opined that the Alexander line of cases “envisioned

a concept of confidentiality and a fiduciary relationship between physician and patient

which is not found in any statute.” 

 Similarly, the trial court criticized Manion for relying

“on numerous general statements of the Pennsylvania trial courts for which we find no

legal precedent or Pennsylvania public policy to support.” Id. at 626. Because the

legislature had not imposed any restrictions on physicians’ abilities to engage in ex parte

communication or to serve as an expert witness for the defense, the Holtzman Court held

that “physicians are to be treated like any other witness” absent a contrary legislative

directive. Id. at 627.

       Moreover, in Moses, the Superior Court found there was no cause of action for a

treating physician’s breach of physician-patient confidentiality based on the physician’s

ex parte communication with defense counsel in which the physician revealed information

that he gained while treating the plaintiff. Moses, 594 A.2d at 953-54. The court found it

significant that the statute codifying the physician-patient privilege, 42 Pa.C.S. § 5929,

states that the privilege ceases to apply when the patient brings a civil action for personal


2 See Petrillo v. Syntex Labs., Inc., 

 (Ill. App. Ct. 1986); Stempler v.

Speidell, 

 (N.J. 1985).


                                       [J-62-2023] - 18
injuries. 

. Further, the court could not find any ethical considerations or medical

licensing statutes that precluded disclosing confidential information after the patient files

a lawsuit. 

. In the court’s view, providing physicians immunity from liability for

disclosing confidential information relevant to a malpractice claim aided in finding the truth

and in disposing meritless claims at the earliest possible time. 

. Expounding

on the benefits of ex parte interviews, the court opined that they “are less costly and easier

to schedule than depositions, are conducive to candor and spontaneity, are a cost-

efficient method of eliminating non-essential witnesses in a case where a plaintiff might

have a number of treating physicians, and allow both parties to confer with the treating

physicians.” 

 (footnote omitted). Even though it endorsed ex parte interviews

with treating physicians, the court noted they must be “limited to that which is pertinent

and material to the underlying litigation” or they would be inadmissible at trial.         

Subsequently, a federal district court applying Holtzman and Moses “reject[ed] the notion

of a public policy in Pennsylvania prohibiting ex parte contact with treating physicians, as

set forth in Manion.” MacDonald v. U.S., 

 (M.D. Pa. 1991). 3

       Following Holtzman, Moses, and MacDonald, Rule 4003.6 became effective. In

the first appellate case to apply Rule 4003.6, the Superior Court in Marek held that a

treating physician’s violation of Rule 4003.6 warranted a new trial. Marek, 

. There, the plaintiff’s treating physician communicated with defense counsel ex

parte in response to defense counsel’s request for his impressions of the case and then

testified at trial as a defense expert. 

. The Marek Court stated Rule 4003.6

prohibited a treating physician from providing the opposing party with any information

without the patient’s written consent outside of the formal discovery process. 

.


3 The district court issued its opinion on June 28, 1991, after our Court had adopted Rule

4003.6 but before it became effective. Its opinion does not mention Rule 4003.6.


                                      [J-62-2023] - 19
The court opined that Rule 4003.6 reflects “the recognized privacy interest underlying the

physician-patient relationship and the physician’s duty of loyalty to the patient.” 

Echoing the Alexander line of cases and Manion, the court continued that ex parte

communication may result in inquiry into irrelevant aspects of the patient’s mental or

physical health or history, may implicate physicians in tort liability for breach of privacy,

and may permit defense counsel to improperly influence the physician or dissuade the

physician from testifying. 

 Even though a patient waives the physician-patient privilege

by filing a lawsuit, the Marek Court found “this waiver does not permit unfettered

disclosure,” and “Rule 4003.6 regulates the manner in which defense counsel obtains

information from the plaintiff’s treating physician.” 

 The court continued:

              Rule 4003.6 is clear in its directive. Only upon consent or
              through a method of authorized discovery may information be
              obtained from a party’s treating physician. These procedures
              protect both the patient and the physician by ensuring that
              adverse counsel will not abuse the opportunity to contact or
              interrogate the physician privately. When formal discovery is
              undertaken in the presence of a patient’s counsel it can be
              assured that irrelevant medical testimony will not be elicited
              and confidences will not be breached, preserving the trust
              which exists between doctor and patient.

   Because Rule 4003.6 was violated when the plaintiff’s treating physician

communicated ex parte with defense counsel without the plaintiff’s consent and then

testified as an expert at trial, the Superior Court awarded a new trial. 

       Next, in Alwine v. Sugar Creek Rest, Inc., 

 (Pa. Super. 2005), the

Superior Court concluded that Marek did not mandate a new trial when a treating

physician testified at trial after communicating ex parte with defense counsel, which “may

have been a violation of Rule 4003.6[.]” Alwine, 

. The Alwine Court

distinguished Marek on the grounds that the treating physician in Marek testified as an

expert witness, whereas the treating physician in Alwine did not offer expert or opinion



                                      [J-62-2023] - 20
evidence. 

 Additionally, the Alwine Court found that the record did not show that the

treating physician’s testimony was prejudicial or affected the verdict. 

       The only other appellate case to consider Rule 4003.6 was the Commonwealth

Court’s decision in Pennsylvania State University v. Workers’ Compensation Appeal

Board (Sox), 

 (Pa. Cmwlth. 2013). In Sox, the employer argued that the

exception in Rule 4003.6(2), which states the rule does not prohibit an attorney from

obtaining information from an employee of the attorney’s client, enabled the employer’s

counsel to have ex parte contact with the employee’s treating physicians who were also

employed by the employer. Sox, 

. The Commonwealth Court noted that

the Rules of Civil Procedure are not controlling in workers’ compensation cases, but they

may be persuasive. 

 Rejecting the employer’s argument, the Commonwealth Court

explained that the policy concerns in Marek applied, particularly “the potential for defense

counsel to seek to influence improperly the physician” because the employer listed the

treating physicians, its employees, as testimonial witnesses. 

. Accordingly,

the Commonwealth Court refused to read the exception in Rule 4003.6(2) as favoring ex

parte communications in workers’ compensation proceedings between a claimant’s

employer and the claimant’s treating physicians where the employer also employs the

treating physicians. 

       With this background in mind, we consider whether Rule 4003.6(1) permits

defense counsel to communicate with the plaintiff’s treating physicians without the

plaintiff’s consent and outside the discovery process. In construing the Rules of Civil

Procedure, our object is to “ascertain and effectuate the intention of the Supreme Court”

by giving effect to all a rule’s provisions. Pa.R.J.A. 108(a)-(b); see also Pa.R.Civ.P.

126(b) (stating that courts construe the Rules of Civil Procedure according to the

principles in Pa.R.J.A. 104-115). “When the words of a rule are clear and free from all




                                     [J-62-2023] - 21
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”

Pa.R.J.A. 108(b). When a rule is not explicit, we consider a nonexclusive list of factors

to ascertain the drafting Court’s intent. Pa.R.J.A. 108(c).

       Rule 4003.6 provides the general standard that “[i]nformation may be obtained

from the treating physician of a party only upon written consent of that party or through a

method of discovery authorized by this chapter.” Pa.R.Civ.P. 4003.6. It then lists three

relationships in which the rule does not prevent an attorney from obtaining information

from a treating physician, i.e., when a treating physician is the attorney’s client or when a

treating physician is an actual or ostensible employee of the attorney’s client. Pa.R.Civ.P.

4003.6(1)-(3). We conclude that Rule 4003.6’s plain language places a restriction on an

attorney’s ability to obtain information from a treating physician, except when the treating

physician is the attorney’s client or an actual or ostensible agent of the attorney’s client.

Neither party offers a different interpretation or argues that the rule is ambiguous.

Compare Appellant’s Brief at 14 (characterizing Rule 4003.6 as providing “three

exceptions from the general rule that the information must be obtained through the

discovery process”) with Mertis’s Brief at 23-24 (stating Rule 4003.6 provides “defense

counsel may only obtain information from a plaintiff’s treating physician by securing the

written consent of the plaintiff or through an authorized method of discovery”). The

dispute in this case is how Rule 4003.6 applies to the facts in which Scanlon Howley and

Attorney Doherty Hillebrand represented the defendant-physician, Dr. Oh, and

subsequently Scanlon Howley and Attorney Hayes accepted the representation of the

plaintiff’s nonparty treating physician, Dr. Kim.

       Because Attorney Doherty Hillebrand represented Dr. Oh in this medical

malpractice case, Rule 4003.6 precluded her from obtaining information from any of

Mertis’s treating physicians, including Dr. Kim, without obtaining Mertis’s written consent




                                      [J-62-2023] - 22
or engaging in an authorized method of discovery, except Rule 4003.6(1) allowed her to

obtain information from her client, Dr. Oh, without obtaining such consent or using an

authorized method of discovery. As Attorney Doherty Hillebrand was a member of the

law firm Scanlon Howley, this restriction extended to all the law firm’s attorneys, including

Attorney Hayes. Accordingly, we conclude that at the time Dr. Kim contacted Attorney

Hayes, Attorney Hayes was precluded from ex parte obtaining information from Dr. Kim

because Attorney Hayes was associated with the law firm representing Dr. Oh. At that

point, the plain language of Rule 4003.6 provides that the only means by which Attorney

Hayes could have obtained information from Dr. Kim was by obtaining Mertis’s written

consent or by utilizing an authorized method of discovery. The client exception in Rule

4003.6(1) does not apply here because Dr. Kim was not Attorney Hayes’s client at the

time the rule restricted Attorney Hayes’s ability to obtain information from Dr. Kim, and

the rule does not provide that an attorney subject to Rule 4003.6’s restriction may enter

an attorney-client relationship in order to obtain information from a treating party’s

physician.

       Moreover, under Pennsylvania law, “[c]onfidential information gained by one

member of a law firm is imputable to other members of the same law firm.” Estate of

Pew, 

 (Pa. Super. 1994); see also Pa.R.P.C. 1.10. Under this principle,

when Attorney Hayes obtained information from Dr. Kim, it was imputed to Attorney

Doherty Hillebrand, who was prohibited from obtaining that information by Rule 4003.6.

Contrary to the trial court’s finding, Mertis did not need to show that Attorneys Doherty

Hillebrand and Hayes actually shared information because they were attorneys in the

same firm, and it is imputable. There is nothing in the record that would preclude this

imputation.   Accordingly, we agree with the Superior Court that permitting Scanlon

Howley to represent both Dr. Oh and Dr. Kim was equivalent to ex parte communication




                                      [J-62-2023] - 23
because the dual representation “give[s] the defense access to information that can only

be obtained otherwise through authorized discovery[.]” Mertis, 

.

       We do not offer an opinion on whether an effective screen 4 may serve as a defense

to the imputation of confidential information. However, in this case, there is no evidence

that Scanlon Howley had a screen in place. 5 In their responses in opposition to the motion

to disqualify, neither Dr. Oh nor Dr. Kim pled as a response or sought to establish as a

defense that there was a screen in place. To the contrary, the record reflects that Attorney

Hayes appeared at a deposition of a nonparty physician witness, Dr. Singh, in place of

Attorney Doherty Hillebrand.     Even accepting Attorney Hayes’s explanation that he

appeared only to notify the participants that Attorney Doherty Hillebrand would join as

soon as she became available, it nonetheless shows Scanlon Howley did not have a

screen in place to keep the representation of Dr. Oh isolated from the representation of

Dr. Kim. Scanlon Howley’s staff did not know it was improper to contact Attorney Hayes

regarding anything involving Dr. Oh’s representation.         Moreover, Attorney Hayes

acquiesced to appearing at the deposition, which shows he was not observing any screen

to keep himself isolated from any participation in Dr. Oh’s representation. While we

express no opinion on whether a proper screen would have permitted Attorney Hayes to

obtain information from Dr. Kim without violating Rule 4003.6, we observe that the record

shows Scanlon Howley did not have such a screen in place.

4 The Pennsylvania Rules of Professional Conduct define “screened” as “the isolation of

a lawyer from any participation in a matter through the timely imposition of procedures
within a firm that are reasonably adequate under the circumstances to protect information
that the isolated lawyer is obligated to protect under these Rules or other law.” Pa.R.P.C.
1.0(k).
5 Mertis filed the motion to disqualify on April 16, 2021, approximately 68 days after

Attorney Hayes appeared at Dr. Singh’s February 8, 2021 deposition. Dr. Oh has not
argued how that specific delay prejudiced him, other than generally asserting it was for
tactical purposes to have Dr. Oh’s counsel disqualified. Under these circumstances, we
decline to find that Mertis waived her objection to a Rule 4003.6 violation.


                                     [J-62-2023] - 24
       Ultimately, if we conclude Rule 4003.6 permits the conduct in this case, such

interpretation would turn Rule 4003.6(1) into a loophole for one attorney in a law firm to

represent a defendant doctor and another attorney in the same law firm to represent a

plaintiff’s treating physician concurrently. Such reading would undermine the rule and

allow attorneys in law firms to have unrestricted access to information from the treating

physician.   As related to this case, there would be nothing preventing a medical

malpractice insurance carrier from sending all the plaintiff-patient’s treating physicians for

representation to the same law firm representing a defendant physician to circumvent

Rule 4003.6. When the same law firm represents the defendant treating physician and

other treating physicians, the concern that one or more of the physicians may be

improperly influenced or dissuaded from testifying is heightened. See Marek, 

. As highlighted in Marek, the prohibition on ex parte communications protects

“the recognized privacy interest underlying the physician-patient relationship and the

physician’s duty of loyalty to the patient,” prevents the disclosure of irrelevant information

about the patient’s medical history, insulates physicians from potential tort liability, and

guards against defense counsel attempting to improperly influence the physician or to

dissuade the physician from testifying. 

 The concerns expressed in Marek are present

in this case. Here, because Attorneys Doherty and Doherty Hillebrand represented a

named defendant physician, Rule 4003.6 precluded them from communicating ex parte

with any of the plaintiff’s other treating physicians. Attorney Hayes, an attorney in the

same law firm as Attorneys Doherty and Doherty Hillebrand, cannot obtain information

from a treating physician as the rule’s prohibition was imputed to all the firm’s attorneys.

Otherwise, attorneys in a law firm representing a defendant physician would be able to

circumvent Rule 4003.6 by simply involving another of the firm’s attorneys to represent a

treating physician. We cannot endorse the “no restrictions” approach to Rule 4003.6(1)




                                      [J-62-2023] - 25
that Appellant advocates because it would eviscerate the plain language restriction of

Rule 4003.6 in the context of attorneys from the same law firm representing a defendant

physician and a patient’s treating physicians.

       We decline to address Appellant’s arguments that disqualification of the attorneys

and law firm is not an available sanction for a Rule 4003.6 violation and would impinge

on his right to choice of counsel. The issue of the proper remedy for a Rule 4003.6

violation is outside the scope of the question upon which we granted discretionary review.

We granted review to interpret Rule 4003.6, not to determine the appropriate remedy for

a violation of Rule 4003.6. See Marion v. Bryn Mawr Trust Co., 

, 93 (Pa.

2023) (declining to address an issue outside the scope of the grant of allowance of

appeal).   Because the Superior Court remanded to the trial court to determine the

appropriate remedy, and we did not grant review regarding the remedy, it is not necessary

for us to resolve whether disqualification is a permissible sanction to decide the issue

upon which we granted review.



                                    IV. CONCLUSION

       For these reasons, we conclude that a law firm representing a defendant treating

physician cannot obtain information from a nonparty treating physician without the

patient’s written consent or through an authorized method of discovery.          The Rule

4003.6(1) client exception does not permit a law firm to obtain information from a nonparty

treating physician by entering into an attorney-client relationship with that physician when

the law firm’s attorneys were already prohibited from obtaining information from that

physician under Rule 4003.6 prior to entering such attorney-client relationship.

Accordingly, the order of the Superior Court is affirmed.

       Jurisdiction relinquished.




                                     [J-62-2023] - 26
Chief Justice Todd and Justices Dougherty, Wecht and Brobson join the opinion.


Justice Donohue files a concurring opinion.




                             [J-62-2023] - 27