Russell v. Albert Einstein Medical Center ( 1996 )

CASTILLE, Justice,

dissenting.

The majority holds that the term “medical witness” as used in Pa.R.C.P. 4020(a)(5) applies to nurses. Because I do not believe that Rule 4020 was intended to have such a broad scope, I must respectfully dissent.

The majority argues that the Rule was not intended to be limited to physicians because the term “physician” could have been used in the rule instead of “medical witness.” However, I believe the reason the term “physician” was not used is because such a limitation would unnecessarily exclude other categories of highly trained medical care providers who may not be physicians but who still face the same considerations as physicians regarding inconvenience to their patients and professional practices which justify the special considerations of the rule in the first place. For example, dentists, chiropractors and psychologists are not physicians, but all schedule appointments with patients who will be inconvenienced, and perhaps endangered, by the need for the health care provider to appear in court rather than render professional services.¹

There is a fundamental difference between a medical witness who is highly trained and often a specialist in his or her field of medicine and whose professional task is the diagnosis of illness and the direction of treatment regimens for such illnesses as compared to an individual who carries out the treatment or regimen ordered. While both may be essential, the services of the former are critical while the services of the latter are not and, therefore, should not received the same considerations given to physicians and other medical witnesses whose testimony is needed at trial.

Although nursing care is essential to the treatment of patients, nurses generally “will have no ‘personal’ problems like the physician, whose problems have been the justification for special treatment.” 1978 Explanatory Note to Pa.R.C.P. 4020. While the unavailability of a physician or other medical witness caused by a court appearance may necessitate the rescheduling of a patient, or perhaps many patients, the unavailability of a nurse can usually be accommodated by the rescheduling of other nurses, thereby avoiding the inconvenience to patients and the disruption of a professional medical practice. Because the special circumstances justifying the rule are not present when a nurse is required to testify in court, I do not believe that nurse witnesses were intended to come within the definition of “medical witness.”

Accordingly, I would affirm the order of the Superior Court reversing the judgment of the Court of Common Pleas.²

1 . Connecticut has a similar rule providing for the use of deposition testimony of medical witnesses at trial. That rule specifies that the depositions of physicians, psychologists, chiropractors, natu-reopathic [sic] physicians, osteopathic physicians and dentists may be received into evidence in lieu of calling the witness to testify at trial. Conn.Gen.Stat. § 52-149a.

2 . Because I do not agree with the majority that the deposition testimony was admissible under Pa.R.C.P. 4020(a)(5), I believe that the Court should address the question of whether it was error to remand the case for a new trial as to all defendants. This Court held in Rivera v. Philadelphia Theological Seminary that a new trial does not mean a new trial as to all parties generally where the error which is the basis for the grant of a new trial only prejudiced one party. 510 Pa. 1, 22, 507 A.2d 1, 12 (1986). Because the nurse's testimony in this case only related to Dr. Soli's liability, only Dr. Soli should be granted a new trial.