J-A04033-15

* Retired Senior Judge assigned to the Superior Court 

2015 PA Super 85

MARGARET J. GALLO, INDIVIDUALLY 

AND AS ADMINISTRATRIX DBN CTA 

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

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 

 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.
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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 Briefin-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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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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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.”). 
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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:
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* * * 

(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 
J-A04033-15

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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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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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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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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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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 physicianpatient 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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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.
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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