
    Coafau v. Phillips
    
      James Barry Tracton, for plaintiffs.
    
      Albert C. Gekoski, for defendants.
    October 2, 1959.
   Flood, P. J.,

In this negligence action the petition of defendant asks for an order requiring plaintiff to authorize defendant’s counsel to examine X-ray pictures and other records in the possession of Misericordia Hospital and Doctor Ostrum. It appears in the petition that plaintiff was treated at Misericordia Hospital and X-ray pictures were taken at that time, and that “X-ray pictures were also taken by Doctor Ostrum.” No answer was filed and we therefore take the averments of the petition as true: C. P. rule 251(e) *. But there is no averment in the petition that the X-ray pictures taken by Doctor Ostrum were taken in the course of treatment. Although plaintiff has filed no answer, in his briefs he states that these X-rays were taken in the course of his preparation for trial. We therefore deny the petition with regard to the pictures taken by Doctor Ostrum. On the other hand, we grant the petition with regard to the X-ray pictures taken at the hospital, in view of the unanswered averment that they were taken at the time of treatment for plaintiff’s injuries.

Plaintiff cites our decision in Fetterolf v. Levick, 80 D. & C. 523 (1952). This opinion was written at a time when the Rules of 1951, 365 Pa. xxxix et seq., were in effect and before the amendments of 1954: 376 Pa. Ixxxiii. Former rule 4005, 365 Pa. xli, upon which we relied in the Fetterolf case, has been extensively modified. In that case, we questioned whether an X-ray report was a “fact”, so as to come under the rule, or a mere opinion. Under the modified rule 4005, 376 Pa. lxxxv, however, the word “fact” has given way to “information.” We no longer think it subject to doubt under the new Pa. R. C. P. 4005 that an X-ray report is subject to discovery upon interrogatories unless it is protected therefrom by the provisions of Pa. R. C. P. 4011.

Rule absolute as to the X-ray pictures taken at Misericordia Hospital. Rule discharged as to X-ray pictures taken by Doctor Ostrum.  