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J. A15026/00
2000 PA Super 129
GEORGE KUNEY, FORMER HUSBAND OF :
IN THE SUPERIOR COURT OF
ADRIENNE KUNEY, ADRIENNE KUNEY
:
PENNSYLVANIA
(INVOLUNTARY PLAINTIFF) FORMER
:
WIFE OF GEORGE KUNEY,
:
Appellants
::
v.
::
:
BENJAMIN FRANKLIN CLINIC,
:
DR. STEVEN SILBER,
:
AND PENNSYLVANIA HOSPITAL,
:
Appellees
:
No. 2702 EDA 1999
Appeal from the Order in the Court of
Common Pleas of Philadelphia County,
Civil Division, No. 1351 SEPTEMBER TERM 1
BEFORE: MCEWEN, P.J., JOYCE and TAMILIA, JJ.
OPINION BY TAMILIA, J.:
Filed: April 25, 2000
¶ 1
Appellant, George Kuney, appeals the August 4, 1999 Order granting
summary judgment in favor of appellee, Steven Silber, M.D. Appellant
argues the trial court erred in limiting his right to obtain the deposition
testimony of Dr. Silber and, thus, precluded him from obtaining the
discovery he argues is necessary to proceed with the case.
¶ 2
The underlying incident in this medical malpractice action involves
appellant's ex-wife, who received treatment from appellee during her
marriage to appellant. After her treatment began in April 1995, appellant's
wife became addicted to the various medications prescribed by appellee.
Thereafter, in September 1995, appellant's wife left him and their children
and, on May 22, 1996, they were divorced. Appellant instituted an action

J. A15026/00
against appellee, alleging loss of consortium, intentional interference with
economic relations and negligence.1 Appellee's motion for summary
judgment was granted and this timely appeal followed.
¶ 3
On appeal, appellant presents one question for our review, "Did the
lower court err in limiting the rights of [appellant] to obtain deposition
testimony of [appellee] Dr. Silber and thereby preclude [appellant] from
going forward on the case?" (Appellant's Brief at 2.)
Summary judgment is proper when the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with any affidavits, show
that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as
a matter of law. A material fact is one that directly
affects the outcome of the case. Our scope of review
of a trial court Order granting summary judgment is
plenary. ... In reviewing the order, we must examine
the record in the light most favorable to the adverse
party and determine whether the moving party has
established that no genuine issue of material fact
exists and that it is entitled to judgment as a matter
of law. We will overturn a lower court's entry of
summary judgment only if there has been an error of
law or a clear abuse of discretion.
Stevens Painton Corp. v. First State Ins. Co., 746 A.2d 649, ___, 2000
Pa. Super. LEXIS 193, **9-10 (Pa. Super. 2000).
¶ 4
Appellant contends the deposition testimony of appellee was not
protected by the physician-patient privilege because the proposed testimony

1 Benjamin Franklin Clinic and Pennsylvania Hospital were defendants to
appellant's cause of action. On March 3, 1998, however, the trial court
sustained their preliminary objections and dismissed them from the action.
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J. A15026/00
did not tend to blacken the character of his ex-wife. In addition, he claims
the privilege does not apply because his wife is a plaintiff in this action.2
Appellee argues that, because the requested information pertained to the
psychiatric treatment of appellant's ex-wife, who is an involuntary plaintiff to
the case and has not consented to any discussion of her medical treatment,
he was required to abide by the statutory physician-patient privilege. The
physician-patient privilege provides:
No physician shall be allowed, in any civil matter, to
disclose any information which he acquired in
attending the patient in a professional capacity, and
which was necessary to enable him to act in that
capacity, which shall tend to blacken the character of
the patient, without consent of said patient, except
in civil matters brought by such patient, for damages
on account of personal injuries.
42 Pa.C.S.A. § 5929, Physicians not to disclose information. "The
statute was designed to create a confidential atmosphere in which a patient

2 Pennsylvania Rule of Civil Procedure 2227, Compulsory Joinder, allows a
party to be joined to a cause of action when his or her rights are so
connected with the claims of the litigants that no relief can be granted
without infringing upon those rights. See Hubert v. Greenwald, 743 A.2d
977 (Pa. Super. 1999) (absence of an indispensable party renders any
decree or order in the matter void for lack of jurisdiction). Appellant's ex-
wife is an involuntary plaintiff to this action, as her whereabouts are
unknown at this time. As a result of her disappearance, appellant's ex-wife
has not been served with notice of this proceeding and, thus, has not
participated. In his complaint, appellant acknowledges that no cause of
action is pled on his ex-wife's behalf (Complaint, 12/15/97, Paragraph 15 at
4). Appellant does not cite to any authority for his contention that his ex-
wife's status as an involuntary plaintiff waives her protection under the
physician-patient privilege. This Court, therefore, will not allow appellant to
use the Compulsory Joinder rule for the purpose of circumventing the
statutory privilege.
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J. A15026/00
will feel free to disclose all possible information which may be useful in
rendering appropriate treatment." Miller Oral Surgery, Inc. v. Dinello,
611 A.2d 232, 235 (Pa. Super. 1992).
¶ 5
In this case, appellant's complaint alleges "[a]s a result of the drugs
given to [appellant's ex-wife] and/or prescribed for her by [appellee], [she]
became addicted and/or dependant upon said drugs so as to emotionally
and/or psychiatrically become dysfunctional and engage in bizarre, uncivil
and harmful behavior" (Complaint, 12/15/97, ¶ 7 at 3). Appellant identified
the prescribed medications as "Seldane, [Z]oloft, Serevent, Nasacort,
Azmacort, Flexeril, Propulsi[d], Zantac and Ionamin" (id., ¶ 6 at 2-3).
Furthermore, he claimed "[a]s a result of the foregoing dispensing of
medications and/or drugs, all of which was done in a negligent and/or
reckless manner, the involuntary plaintiff ... has sustained injury in that her
mental process and emotional well-being have been diminished, damaged
and/or compromised..." (id., ¶ 17 at 4). During discovery, appellee refused
to answer questions regarding his treatment of appellant's ex-wife after
counsel advised him of his duty to protect the confidences of his patient.
Appellant's motion to compel appellee to answer the questions was denied
by the court on April 22, 1999. Thereafter, appellant was unable to obtain
an expert report analyzing and rendering an opinion on appellee's care and
treatment of his ex-wife. As a result, the trial court found appellant was
unable to prove appellee's conduct fell below the accepted standard of care
- 4 -

J. A15026/00
and granted summary judgment in favor of appellee. See Trial Court
Opinion, Lachman, J., 8/4/99, at 2.
¶ 6
In light of the record, it is clear the requested deposition testimony
involves information obtained from appellant's ex-wife, which tends to
blacken her character, and, thus, is protected by the physician-patient
privilege. Appellant's cause of action focuses on the physical, mental and
emotional condition of his ex-wife, who, according to his complaint, engaged
in bizarre and harmful behavior. In addition, if appellee were forced to
divulge the nature of his care of appellant's ex-wife, the deposition
testimony surely would involve intimate information gathered from her
during the course of her treatment. See In re June 1979 Allegheny
County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980)
(privilege is limited to information which would offend its rationale, i.e.,
information directly related to patient's communication to physician).
¶ 7
Appellant's reliance on Commonwealth ex rel. Platt v. Platt, 404
A.2d 410 (Pa. Super. 1979), for the proposition that testimony relating to
psychiatric treatment does not tend to blacken one's character, is misplaced.
In Platt, this Court had to determine whether testimony of a treating
psychiatrist in an involuntary commitment proceeding violated the physician-
patient privilege. We stated, "[s]ince psychiatric treatment does not
evidence the existence of a loathsome disease, evidence of such treatment
could not blacken the reputation of one who has sought it for only evidence
- 5 -

J. A15026/00
of such a disease would tend to blacken a person's reputation." Id. at 415,
citing In re "B", 482 Pa. 471, 394 A.2d 419 (1978). Furthermore, we found
the Mental Health Procedures Act requires the testimony of the psychiatrist
who examined the patient to be committed and, because the Act was
promulgated subsequent to the statutory physician-patient privilege, we
gave it preference. Platt, supra at 415. Thus, this Court held, "the said
Act is a special provision requiring the testimony of the physician who
treated the patient, which special provision controls the general physician-
patient statute and constitutes an exception thereto...." Id.
¶ 8
This case is clearly distinguishable from Platt, in that the treatment of
appellant's ex-wife was not exclusively psychiatric in nature. In this case,
appellee is an internal medicine doctor, with a specialty in lipidology, which
is the treatment of patients with abnormal cholesterol and fat levels
(Deposition of Steven Silber, 3/16/99, at 11). The medications prescribed
by appellee included an appetite suppressant (Ionamin), asthma medications
(Seldane, Serevent and Azmacort), an allergy medication (Nasacort), a
muscle relaxant (Flexeril), acid indigestion medications (Zantac and
Propulsid) and an antihistamine (Seldane). The only medication prescribed
to treat an emotional condition is Zoloft, which is an anti-depressant. In
light of this evidence, we cannot apply the rationale of Platt.
¶ 9
It is well settled that a plaintiff in a medical malpractice action is
"required to present an expert witness who will testify, to a reasonable
- 6 -

J. A15026/00
degree of medical certainty, that the acts of the physician deviated from
good and acceptable medical standards, and that such deviation was the
proximate cause of the harm suffered." Mitzelfelt v. Kamrin, 526 Pa. 54,
62, 584 A.2d 888, 892 (1990). In this case, appellant did not submit an
expert report and, thus, could not prove appellee's conduct fell below the
accepted standard of care or that appellee's conduct was the proximate
cause of his injuries. The trial court, therefore, did not commit an error of
law or abuse of discretion in granting summary judgment in favor of
appellee.
¶ 10 Order affirmed.
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