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A Lackawanna County trial judge has ruled that a nurse must resume her deposition testimony in a nursing home death case despite the defense's argument that her anxiety is too severe to allow her to continue.

Ezrin v. Hospice Preferred Choice is a wrongful death case alleging negligent and reckless nursing home and hospice care on the part of defendants Abington Manor and AseraCare that led to the death of Sidney Ezrin. According to the Oct. 3 memorandum and order by Lackawanna County Court of Common Pleas Judge Terrence Nealon, the charge nurse on duty at Abington Manor during the period in which the alleged negligence and recklessness occurred, identified only as “C.N.,” cut her deposition testimony short and subsequently produced a report from her physician saying the completion of her deposition would need to be postponed until her anxiety was under control.

Ultimately, the nursing home filed a motion for a protective order seeking to preclude the continuation of C.N.'s deposition altogether.

But Nealon denied the motion and ordered the conclusion of her deposition before the discovery deadline expires Oct. 31.

“More than 40 days ago, the nurse's physician indicated in his brief report that the nurse did 'not feel at [that] time' that she should complete her deposition, and he requested that any further questioning be postponed, not prohibited, to 'allow us to better control her anxiety,'” Nealon said. “The record also reflects that the nurse is currently employed full-time by the nursing home where she is responsible for 30 nursing home patients each shift. Based upon the materials submitted and Pa.R.C.P. 4012 governing protective orders, the nursing home has not satisfied its burden of demonstrating 'good cause' to permanently preclude the resumption of the nurse's deposition due to unreasonable burden, oppression or annoyance.”

The parties pointed to the Lackawanna County Court of Common Pleas' 2015 ruling in Cook v. Moses Taylor Hospital, in which it granted a protective order for a post-anesthesia care unit (PACU) nurse who was on indefinite medical leave from her job because of a progressive neurological condition.

But Nealon said that case was distinguishable from C.N.'s situation.

“In contrast to the PACU nurse in Cook who was on 'indefinite medical leave of absence' with 'no expected return date' because of her medical and mental incapacity, C.N. remains gainfully employed by Abington Manor where she is responsible for 30 nursing home patients each shift,” Nealon said. “Moreover, unlike the PACU nurse's treating physician who attested to her 'progressive neurological disease' that adversely affected 'her cognitive abilities' and rendered her medically and mentally incapable of testifying, C.N.'s physician largely reports C.N.'s own subjective complaints and believes, and he merely requests a postponement, rather than a prohibition, of her continued questioning to 'allow us to help better control her anxiety.'”

Nealon also noted that, as of Aug. 23, C.N.'s physician, Dr. Satish Mallik, was treating her for generalized anxiety disorder, a condition that antidepressants have proven to be effective in treating after two weeks of use.

“Since 41 days have elapsed from the date that Dr. Mallik requested consideration of 'postponing the questioning' to 'allow us to help better control her anxiety,' an adequate treatment period has passed such that the requisite 'good cause' does not exist for barring the resumption of C.N.'s discovery deposition,” Nealon said.

Still, the judge did issue a warning to the attorneys in the case, noting the number of times defense counsel objected to a question C.N. was asked or interrupted the conversation to advise her on whether or how to answer.

“It is apparent from the deposition transcript that C.N.'s anxiety ostensibly flared in the midst of a series of interjections and objections by counsel to a single question, i.e., why she did not ask or direct the east wing nurse's aide to help the hospice [certified nursing assistant] after she had requested assistance,” Nealon said. “A less disquieting atmosphere during the resumption of C.N.'s deposition should reduce her level of anxiety. Counsel are expected to lodge only meritorious objections that need to be preserved notwithstanding counsel's stipulation, and should interrupt the give-and-take between the questioner and the deponent only when necessary in properly representing their clients' interests in this matter.”

Counsel for plaintiff Donald Ezrin, the administrator of Sidney Ezrin's estate, is Susan Luckenbill of Jill MIller & Associates in Scranton. She could not be reached for comment.

Counsel for AseraCare, Matthew Keris of Marshall Dennehey Warner Coleman & Goggin in Scranton, and for Abington Manor, Robert Dillon of Naulty, Scaricamazza & McDevitt in Philadelphia, also could not be reached for comment.

(Copies of the 14-page opinion in Ezrin v. Hospice Preferred Choice, PICS No. 18-1193, are available at http://at.law.com/PICS.)