J-A04033-15


                             2015 PA Super 85

MARGARET J. GALLO, INDIVIDUALLY         :   IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX DBN CTA           :         PENNSYLVANIA
OF THE ESTATE OF JOSEPH J. GALLO,       :
SR.,                                    :
                                        :
         v.                             :
                                        :
CONEMAUGH HEALTH SYSTEM, INC.,          :
CONEMAUGH VALLEY MEMORIAL               :
HOSPITAL, CONEMAUGH VALLEY              :
MEMORIAL HOSPITAL, D/B/A                :
MEMORIAL MEDICAL CENTER,                :
CONEMAUGH HEALTH INITIATIVES,           :
INC., CONEMAUGH HEALTH                  :
INITIATIVES, INC., D/B/A/               :
CONEMAUGH PHYSICIAN GROUP,              :
LAUREL GROUP ANESTHESIA, P.C.,          :
ASHOK PADHIAR, M.D., RANDY              :
JOHNSON, CRNA, CONEMAUGH                :
HEALTH INITIATIVES, INC., D/B/A/        :
CONEMAUGH VALLEY SURGEONS,              :
RUSSELL DUMIRE, M.D., AND HANNA         :
KIM, D.O.                               :
                                        :
APPEAL OF: ASHOK PADHIAR, M.D           :    No. 1101 WDA 2014


                Appeal from the Order Entered June 16, 2014
              in the Court of Common Pleas of Cambria County
                   Civil Division at No(s): No. 2011-02862

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                       FILED APRIL 17, 2015

     Ashok Padhiar, M.D. (Dr. Padhiar) appeals from the order entered June

16, 2014, which granted the motion to compel discovery filed by Appellee

Margaret J. Gallo (Gallo). After review, we reverse and remand for further

proceedings consistent with this opinion.


* Retired Senior Judge assigned to the Superior Court
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      The trial court aptly summarized the relevant factual and procedural

history of this case as follows.

            On December 27, 2009, at 2:00 p.m., Joseph J. Gallo (“Mr.
      Gallo”) entered Conemaugh Valley Memorial Hospital’s
      Emergency Room.       Mr. Gallo complained of an odorous,
      blackened “second toe on his right foot” that was discharging
      pus. Paul Rollins M.D. (“Dr. Rollins”) was treating Mr. Gallo for
      gangrene on the same toe and had scheduled previously a
      January 2, 2010 amputation of it. Mr. Gallo, however, admitted
      himself to the Emergency Room to see if an earlier amputation
      was possible. Because of the unexpected Emergency Room visit,
      Dr. Rollins was unavailable and Russell Dumire, M.D. (“Dr.
      Dumire”) assumed care. After Dr. Dumire examined Mr. Gallo,
      he agreed to perform the more immediate amputation the next
      day – December 28, 2009.

             [Dr. Padhiar] performed the “pre-surgical anesthesia
      consult evaluation.” [Dr. Padhiar’s] performing the evaluation is
      notable because he had an alcohol addiction. He was arrested at
      least eight times for driving under the influence (“DUI”) in
      Illinois, Michigan, Ohio, and Pennsylvania, including once in
      November 2009 – one month before Mr. Gallo’s unexpected
      surgery.     Because of this addiction and its subsequent
      consequences, at least one state revoked his medical license. At
      the time, though, Pennsylvania had not.

            In light of [Dr. Padhiar’s] alcohol history and despite Mr.
      Gallo being 81 years old and having a history of both
      “cardiovascular and pulmonary medical conditions,” [Dr.
      Padhiar] never “conduct[ed] a physical examination,” a cardiac
      evaluation, a pulmonary assessment, a chest x-ray, or an
      electrocardiogram     test   in   his   pre-surgical  evaluation.
      Furthermore, despite “Mr. Gallo’s pre-induction vital signs
      show[ing] that he was hypotensive[] with a blood pressure of
      78/34” no action was taken by either [Dr. Padhiar] or any of the
      hospital’s medical staff “to raise [Mr.] Gallo’s blood pressure.”
      On the contrary, [Dr. Padhiar] and the medical staff proceeded
      as normal by administering general anesthesia. Accordingly, on
      December 28, 2009, Dr. Dumire performed the toe amputation
      with [Dr. Padhiar] assisting as the anesthesiologist.




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           “Some time during or immediately after the [amputation,
     Mr.] Gallo suffered a cardiac arrest.” The medical staff initiated
     CPR, gave [Mr.] Gallo epinephrine and atropine, and transferred
     him “to the Intensive Care Unit.” For three months, [Mr.] Gallo
     remained in the Intensive Care Unit unresponsive until he died
     on March 12, 2010. A “neurological evaluation revealed that Mr.
     Gallo suffered from anoxic encephalopathy[, brain damage due
     to lack of oxygen].

            On October 5, 2011, [Gallo] filed a Complaint both
     individually and as Administratrix of Mr. Gallo’s Estate [] against
     [the above-captioned defendants]. The counts against these …
     defendants consisted of both Wrongful Death and Survival
     Actions. Of particular note here are the allegations against [Dr.
     Padhiar]. In sum, Gallo argues alcohol impaired [Dr. Padhiar] at
     the time of Mr. Gallo’s surgery and therefore [Dr. Padhiar’s]
     actions and omissions ultimately caused Mr. Gallo “to suffer a
     cardiac arrest” that “result[ed] in his death.”

           On December 23, 2013, Gallo filed a Motion to Compel [Dr.
     Padhiar] to provide [Gallo] with more specific responses to
     [Gallo’s] discovery requests. Two weeks later, on January 7,
     2014, the [trial c]ourt granted Gallo’s requests. On January 30,
     2014, [Dr. Padhiar] filed a Motion for Reconsideration. Shortly
     after that, on February 6, 2014, the [trial c]ourt vacated its
     January 7th Order and scheduled a February 12th Hearing to
     address the privilege issues. The Hearing occurred as scheduled
     and the [trial c]ourt requested both parties submit briefs.

           On February 26, 2014, [Dr. Padhiar] submitted his Brief-
     in-Opposition; and, on March 10, 2014, Gallo submitted hers. In
     Gallo’s brief she narrowed the “drug and alcohol treatment
     records” to the records [Dr. Padhiar]:

           1. Revealed to the Pennsylvania medical license
              board to obtain his Pennsylvania license;
           2. Released to Conemaugh in 2006 to obtain
              employment and credentials there;
           3. Disclosed to the Pennsylvania medical license
              board to “maintain his [Pennsylvania] medical
              license;” and
           4. Divulged to the Cambria County Court of Common
              Pleas to lessen his criminal sentence for his 2010
              DUI arrest and conviction.


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J-A04033-15



Trial Court Opinion (T.C.O), 6/18/2014, at 1-4 (citations omitted).

       By order dated June 13, 2014, the trial court granted Gallo’s motion to

compel, determining that Dr. Padhiar had effectively waived any privilege by

including in his answer to Gallo’s complaint specific denials to Gallo’s

allegation that he was impaired by alcohol at the time of Mr. Gallo’s surgery.

The trial court further determined that the “good cause” requirement for

disclosure under both the Pennsylvania and federal statutes was satisfied.

       Dr. Padhiar timely filed a notice of appeal and, in response to the trial

court’s order, a statement of errors complained of on appeal.1 On appeal,

Dr. Padhiar claims that privileges created by both federal regulations and

state law preclude disclosure of the confidential communications contained in

his alcohol treatment records.2

____________________________________________
1
  The trial court’s order granting Gallo’s motion to compel is a collateral
order under Pa.R.A.P. 313, and is thus immediately appealable. See Rhodes
v. USAA Casualty Ins. Co., 21 A.3d 1253, 1258 (Pa. Super. 2011)
(“Generally, discovery orders involving purportedly privileged material are
appealable because if immediate appellate review is not granted, the
disclosure of documents cannot be undone and subsequent appellate review
would be rendered moot.”); Gormley v. Edgar, 995 A.2d 1197 (Pa. Super.
2010) (determining that a discovery order involving allegedly privileged
mental health information is appealable collateral order to pursuant to
Pa.R.A.P. 313).
2
  In her brief, Gallo suggests that the federal regulation is inapplicable
because Appellant is not a government employee. Gallo’s Brief at 13 n. 1.
We are unpersuaded by the authority Gallo cites in support of her argument.
The treatment records at issue herein are held by programs receiving federal
funding. Thus, as the trial court noted, the records fall under the scope of
the federal regulations dealing with disclosure and privilege. See Trial Court
(Footnote Continued Next Page)


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J-A04033-15


      We address Dr. Padhiar’s claims mindful of the following. “Generally, in

reviewing the propriety of a discovery order, our standard of review is

whether the trial court committed an abuse of discretion. However, to the

extent that we are faced with questions of law, our scope of review is

plenary.” Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super. 2010). It is

well-settled that “[t]he right to claim a privilege is a personal one belonging

to the individual protected by the statutory privilege.” See Commonwealth

ex rel. Romanowicz v. Romanowicz, 248 A.2d 238 (Pa. Super. 1968).

However, “statutorily-created privileges are not absolute. The privilege

conferred must be balanced against countervailing interests in insuring the

fairness and integrity of the judicial system. The state’s ‘compelling interest’

in insuring that the truth is revealed in the course of the adversarial process

justifies an implied waiver of privilege.” O’Boyle v. Jensen, 150 F.R.D. 519,

522 (M.D. Pa. 1993) (citations omitted).

      Dr. Padhiar first contends that the trial court erred in determining that

the specific denials of allegations that Dr. Padhiar was intoxicated at the

time of Mr. Gallo’s surgery, contained in Dr. Padhiar’s answer to Gallo’s

complaint, constituted offers of testimony for the purposes of the federal

                       _______________________
(Footnote Continued)
Opinion, 6/16/2014, at 5; 42 C.F.R. § 2.3 (“Under the statutory provisions
quoted in §§ 2.1 and 2.2, these regulations impose restrictions upon the
disclosure and use of alcohol and drug abuse patient records which are
maintained in connection with the performance of any federally assisted
alcohol and drug abuse program.”).




                                            -5-
J-A04033-15


regulations governing confidentiality of alcohol and drug abuse patient

records. Dr. Padhiar’s Brief at 14-16.

           Section 527 of the Public Health Service Act, 42 U.S.C.
      § 290ee-3, with certain exceptions not relevant to this
      proceeding, provides that:

            [r]ecords of the identity, diagnosis, prognosis, or
            treatment of any patient which are maintained in
            connection with the performance of any drug abuse
            prevention function conducted, regulated, or directly
            or indirectly assisted by any department or agency of
            the United States shall ... be confidential and be
            disclosed only for the purposes and under the
            circumstances expressly authorized under subsection
            (b) of this section.

      Subsection (b), in turn, authorizes the disclosure of otherwise
      confidential records-regardless of whether the patient has given
      prior written consent - “[i]f authorized by an appropriate order of
      a court of competent jurisdiction granted after application
      showing good cause therefor.” 42 U.S.C. § 290ee-3(b)(2)(C).

Local 738, Int’l Bhd. of Teamsters v. Certified Grocers Midwest, Inc.,

737 F. Supp. 1030, 1032-33 (N.D. Ill. 1990). “In order to implement these

congressional goals and pursuant to 42 U.S.C. § 290ee-3(g)’s mandate, the

Secretary of Health and Human Services … enacted regulations which

provide the procedures and criteria” to obtain a court order authorizing

disclosure of confidential communications made by a patient in the course of

diagnosis, treatment, or referral for treatment. Id. at 1033.               Those

regulations provide, in pertinent part, as follows.

      (a) A court order under these regulations may authorize
      disclosure of confidential communications made by a patient to a
      program in the course of diagnosis, treatment, or referral for
      treatment only if:


                                      -6-
J-A04033-15


                                   ***

           (3) The disclosure is in connection with litigation or
           an administrative proceeding in which the patient
           offers testimony or other evidence pertaining to the
           content of the confidential communications.

42 C.F.R. § 2.63(a)(3).

     With respect to disclosure,

     Congress has determined … that the public interest in
     encourag[ing] the understandably hesitant to come to drug
     abuse treatment centers in the first place and thereafter to
     continue to avail themselves of these services usually outweighs
     a private litigant’s interest in obtaining probative and material
     evidence - at least until the patient himself has opened the door
     to disclosure of the confidential records. The door must be
     opened, moreover, within the context of the litigation or
     administrative proceeding itself - prior waiver or consent does
     not suffice. And finally, a court cannot compel the disclosure of
     otherwise privileged records unless and until the patient has
     waived his privilege by means of offering testimony or other
     evidence pertaining to their contents.

Local 738, 737 F. Supp. at 1034 (citations and quotations omitted).

     If the confidential communications meet the criteria for disclosure

under section 2.63, Section 2.64 provides that an order for disclosure may

issue under the following circumstances.

      (a) Application. An order authorizing the disclosure of patient
     records for purposes other than criminal investigation or
     prosecution may be applied for by any person having a legally
     recognized interest in the disclosure which is sought. The
     application may be filed separately or as part of a pending civil
     action in which it appears that the patient records are needed to
     provide evidence. An application must use a fictitious name,
     such as John Doe, to refer to any patient and may not contain or
     otherwise disclose any patient identifying information unless the
     patient is the applicant or has given a written consent (meeting
     the requirements of these regulations) to disclosure or the court


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J-A04033-15


     has ordered the record of the proceeding sealed from public
     scrutiny.

                                       ***

     (d) Criteria for entry of order. An order under this section may
     be entered only if the court determines that good cause exists.
     To make this determination the court must find that:

           (1) Other ways of obtaining the information are not
           available or would not be effective; and

           (2) The public interest and need for the disclosure
           outweigh the potential injury to the patient, the
           physician-patient relationship and the treatment
           services.

42 C.F.R. § 2.64 (a), (d) (emphasis added).

     “Therefore,    if   the   information    sought   contains   ‘confidential

communications,’ plaintiff must satisfy both the ‘good cause’ requirements

of [section 2.64(d)] and the requirements of [section 2.63(a)(3)].” Fannon

v. Johnston, 88 F. Supp. 2d 753, 758 (E.D. Mich. 2000) (emphasis added).

     Instantly, the trial court concluded that Dr. Padhiar made an offer of

testimony, as contemplated by the federal regulations, in his Answer to

Gallo’s complaint. The court explained as follows.

     [I]n his response to Complaint Paragraph 24, [Dr. Padhiar]
     specifically denied “suffering [from] any condition that in any
     way affected his ability to provide reasonable and appropriate
     medical treatment to” Mr. Gallo. That Answer alone is sufficient
     for an “offering” to have been made because [Dr. Padhiar] has
     now given Gallo an opportunity to require disclosure of his
     confidential medical records so “a more complete picture” may
     be obtained. But [Dr. Padhiar] did not stop there. In response to
     Complaint Paragraph 26, [Dr. Padhiar] denied being impaired at
     the time of surgery. Once more, [Dr. Padhiar] opened the door
     for a more thorough examination of the subject matter.


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J-A04033-15


      Accordingly, once the door has been opened, it cannot be closed.
      Thus, the [c]ourt holds an “offering” has been made.

T.C.O., 6/16/2014, at 8-9.

      However, it is clear from our sister courts’ interpretation of this

provision that the offer of testimony contemplated by the regulations is

testimony under oath in the traditional sense. See, e.g., Fannon, 88

F.Supp.2d at 762-65 (analogizing the offer of testimony contemplated by

regulation subsection 2.63(a)(3) to the offer of testimony required by

Federal Rule of Evidence 404(a)(1)).

      As the trial court notes in its Opinion, depositions have yet to take

place in the instant case. T.C.O., 6/16/2014, at 8. Thus, Dr. Padhiar has not

had the opportunity to offer testimony. Additionally, “[a]n answer shall state

the material facts which constitute the defense to the petition.” Pa.R.C.P.

206.2(a).     Pursuant to Pa.R.C.P. 1019, which governs the content of

pleadings, Pennsylvania utilizes a fact-pleading scheme, in which parties

“must not only [provide] notice of ... the ... claim ... and the grounds upon

which it rests, but ... also formulate the issues by summarizing those facts

essential to support the claim.” Gates v. Gates, 967 A.2d 1024, 1030-31

(Pa. Super. 2009) (citations and quotations omitted).       Thus, we cannot

agree with the trial court that Dr. Padhiar’s adherence to the relevant

procedural rules constitutes an offering as contemplated by Section

2.63(a)(3).




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J-A04033-15


      As Dr. Padhiar did not commence this litigation, we find this situation

distinguishable from those cases that conclude a plaintiff has waived

privilege by placing confidential communications at issue in a complaint. See

Octave ex rel. Octave v. Walker, 103 A.3d 1255, 1263 (Pa. 2014)

(“[Plaintiffs] knew or reasonably should have known James’s mental health

would be placed directly at issue by filing the lawsuit.”); O’Boyle v. Jensen,

150 F.R.D. 519, 522 (M.D. Pa. 1993).

      Moreover,   as   noted   above   “courts   addressing   the   issue   have

determined that the mere fact that someone has filed a lawsuit and has put

certain facts [at] issue does not constitute the requisite offering of testimony

or evidence under 42 C.F.R. § 2.63(a)(3).” Local 738, 737 F. Supp. at

1033-34, (quoting Whyte v. Connecticut Mutual Life Ins. Co., 818 F.2d

1005, 1010 and n. 18 (1st Cir.1987)).

      Finally, to the extent that Gallo alleges that Dr. Padhiar waived any

privilege by disclosing the contents of his treatment records to Conemaugh

Health System, the Pennsylvania medical license board, or the Cambria

County Court of Common Pleas, we reiterate that Section 2.63(a)(3) is

litigation-specific. Local 738, supra. Thus, those prior disclosures have no

effect on the privilege asserted by Dr. Padhiar in the instant case.

      As we have determined that Dr. Padhiar has not offered testimony

with respect to the confidential communications at issue, we hold that the

trial court erred in determining that Dr. Padhiar “opened the door” to any



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J-A04033-15


disclosure under section 2.63(a)(3). Accordingly, because Gallo has failed to

establish that the information sought meets the requirement for disclosure

under section 2.63(a)(3), we need not consider whether good cause exists

to compel disclosure under section 2.64(d). See Fannon, 88 F. Supp. 2d at

758.

       Finally, Dr. Padhiar claims that the trial court erred in determining that

the records should be disclosed under the “good cause” exception contained

in subsection (b) of the Pennsylvania Drug and Alcohol Abuse Control Act

(the Act). 71 P.S. § 1690.108(b). Dr. Padhiar’s Brief at 9-14.

       “Statutory interpretation ‘is a question of law and, as such, our

standard of review is de novo and our scope of review is plenary.’” J.C.B. v.

Pennsylvania State Police, 35 A.3d 792, 794 (Pa. Super. 2012).

       The basic tenet of statutory construction requires a court to
       construe the words of the statute according to their plain
       meaning. When the words of a statute are clear and free from all
       ambiguity, the letter of it is not to be disregarded under the
       pretext of pursuing its spirit. 1 Pa.C.S.[] § 1921(b).

       Generally speaking, the best indication of legislative intent is the
       plain language of a statute…. Under [1 Pa.C.S.] Section 1921(c),
       it is only when the words of a statute are not explicit that a court
       may resort to other considerations, such as the statute’s
       perceived “purpose,” in order to ascertain legislative intent.
       Consistently with the Act, this Court has repeatedly recognized
       that rules of construction, such as consideration of a statute’s
       perceived “object” or “purpose,” are to be resorted to only when
       there is an ambiguity. Finally, we note the maxim of statutory
       interpretation that the expression of one thing in a statute
       implies the exclusion of others not expressed. Similarly, the
       court may not supply omissions in the statute when it appears
       that the matter may have been intentionally omitted.



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J-A04033-15


Commonwealth v. Finley, 860 A.2d 132, 140 (Pa. Super. 2004) (some

internal citations, footnotes, and quotation marks omitted).

      Instantly, the trial court determined that a reading of subsection (b)

and (c) of the Act imputes into subsection (c) a good faith exception to

disclosure. T.C.O., 6/16/2014, at 10-11. We disagree.

      In O’Boyle v. Jensen, the United States District Court for the Middle

District of Pennsylvania interpreted the relevant provisions of the Act, stating

      Pennsylvania law places additional restrictions on the release of
      alcohol/drug abuse treatment records. The Pennsylvania
      confidentiality statute tracks federal law to the extent the patient
      records sought were “prepared or obtained” pursuant to the [the
      Act], providing for the release of such records upon a showing of
      “good cause”. [71 P.S. § 1690.108(b)]. Section 1690.108(b)
      provides, in relevant part:

            All patient records ... prepared or obtained pursuant
            to [the Act] shall remain confidential, and may be
            disclosed only with the patient’s consent ...
            Disclosure may be made for purposes unrelated to ...
            treatment or benefits only upon an order of a court
            of common pleas after application showing good
            cause therefor. In determining whether there is good
            cause for disclosure, the court shall weigh the need
            for the information sought to be disclosed against
            the possible harm of disclosure to the person to
            whom such information pertains, the physician-
            patient relationship, and to the treatment services,
            and may condition disclosure of the information upon
            any appropriate safeguards....

      Id.

      However, unlike the federal statute, the Pennsylvania statute
      provides that if the records sought are in the possession of a
      “private practitioner, hospital, clinic, drug rehabilitation or drug
      treatment center” as they are in this case, such records:



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J-A04033-15


              shall remain confidential and may be disclosed only
              with the patient’s consent and only (i) to medical
              personnel exclusively for purposes of diagnosis and
              treatment of the patient or (ii) to government or
              other officials exclusively for the purpose of
              obtaining benefits due the patient as a result of his
              drug or alcohol abuse or drug or alcohol dependence
              except that in emergency medical situations where
              the patient’s life is in immediate jeopardy, patient
              records may be released without the patient’s
              consent to proper medical authorities solely for the
              purpose of providing medical treatment to the
              patient.

       71 P.S. § 1690.108(c). There is no provision in this section
       comparable to that found in the federal statute and in
       Pennsylvania section 1690.108(b) providing for the
       release of the treatment records by court order upon a
       showing of good cause.

O’Boyle, 150 F.R.D. at 521-22 (emphasis added).3

       While we are not bound by the determinations of the federal court, we

find persuasive its interpretation of the Act. Accordingly, as in O’Boyle,

subsection (c), related to disclosure of documents held by private facilities,

controls.   As noted above, the plain language of subsection (c) does not

include a good cause provision. Accordingly, we hold that the trial court

erred in determining that the good cause exception of subsection (b) applies


____________________________________________
3
  Notwithstanding its holding that subsection (c) of the Act was applicable,
the O’Boyle Court determined that the plaintiff in that case had waived any
privilege by filing the 1983 action at issue. 150 F.R.D. at 522. (“Despite the
absence of such a provision, we find that the records which defendants seek
are discoverable because the privilege conferred by section 1690.108(c) has
been waived. Plaintiff waived the privilege by filing this action to recover for
O’Boyle’s death.”) Such is not the case here.



                                          - 13 -
J-A04033-15


to subsection (c). Thus, we conclude that the records sought by Gallo are

protected by the Act, without exception, subject to disclosure by Dr. Padhiar.

      Thus, for all of the foregoing reasons, we hold that the documents

sought by Gallo are protected by federal and statutory privilege; therefore,

the trial court erred in granting Gallo’s motion to compel. Accordingly, we

reverse the trial court’s order.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2015




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