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Medical Malpractice Attorneys
Philadelphia, Pennsylvania
MEDICAL EXPERTS - WHEN & HOW THEY HELP YOU WIN
By, Norman Perlberger, Esquire1
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IV. Qualifications in a Med Mal Case
Strict standards regulating the competency of medical experts went into effect May 19, 2002. Generally an expert must be actively engaged in clinical practice or teaching (or retired less than five years). To testify as to whether a physician meets the standard of care, the expert must practice in the same or a similar specialty, and must be board-certified if the defendant is. Pa. Stat. Ann. tit. 40, § 1303.512 (LEXIS 2003).
Courts have some leeway to waive these requirements if offered other evidence of an expert witness's adequate training, experience, and knowledge. Id. In actions commenced on or after January 27, 2003, a plaintiff suing licensed professionals must file as to each of them a certificate of merit within 60 days of the complaint certifying that a qualified expert has supplied a written statement that there exists a reasonable probability that the defendant's care fell outside acceptable professional standards and that such conduct was a cause of injury. Alternatively, the certificate may state that expert testimony is unnecessary to prove the claim, but in that case the court should not allow such testimony later. Pa. R. Civ. P. 1042.3.
The so-called “medical malpractice crisis” has made headlines recently, especially in Pennsylvania. After much anticipation and debate, the Pennsylvania Legislature passed legislation known as Act 13. Shortly thereafter, on March 20, 2002, Governor Mark Schweiker signed Act 13 into law as the “Mcare Act” (Medical Care Availability and Reduction of Error Act). The legislation encompasses a sweeping range of changes, including new duties, responsibilities, regulations, and administrative functions.
A significant change found in the concerns expert witness qualifications and expert testimony in a medical malpractice case. Prior to the enactment of the statute, Pennsylvania’s standard on expert witness qualifications and testimony was governed solely by case law. Generally, under Pennsylvania case law, if the witness possesses knowledge outside of the ordinary reach of a lay person and offers testimony which could assist the trier of fact, the witness is qualified to give an opinion as to causation and as to whether the medical care provider deviated from the standard of care. Montgomery v. South Phila. Med. Grp., Inc., 441 Pa. Super. 146, 656 A.2d 1385 (1995); see also Bindschusz v. Phillips, 2001 Pa. Super. 93, 771 A.2d 803 (2001)(anesthesiologist permitted to testify as to the standard of care against orthopedic surgeon).
Under the Act, an expert must satisfy specific requirements which are above and beyond what is required in non medical malpractice actions under Pennsylvania law, before being permitted to render an expert opinion. An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia, and must be engaged in, or retired within the previous five years from, active clinical practice or teaching.
In addition to these requirements, a physician testifying as to the standard of care must also be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care, must practice in the same sub-specialty as the defendant physician or in a sub-specialty which has a substantially similar standard of care, and, if the defendant is certified by an approved board, the expert must be board certified by the same or similar approved board. The court may waive these requirements if it determines that the expert possesses sufficient training, experience, and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable sub-specialty or a related field of medicine within the previous five-year time period. 40 P.S. § 1303.512(e). The limitations and regulations on expert witnesses will generally benefit defendants, as it will now be more difficult for a plaintiff to present an expert from a medical field different from the field at issue.
In the four-plus years since its adoption, the Pennsylvania appellate courts have render several important opinions that interpret the expert qualification section of the MCare Act, 40 P.S. § 1303.512. Unfortunately, the decisions rendered thus far have been less than consistent.
Recently, two Pennsylvania Superior Court decisions, handed down in the same month, came to very different conclusions as to the qualifications necessary for an expert to testify in a medical malpractice claim. Gartland v. Rosenthal, 2004 PA Super 134 (2004) and Wexler v. Hecht, 2004 PA Super 95 (2004) both involved experts who sought to render standard of care testimony outside of their particular area of specialty. Both Superior Court panels analyzed the expert testimony qualifications under the common law, and under the provisions set forth under the MCare Act, but came to different conclusions.
In Wexler, the plaintiff had undergone a bunion-removal surgery and related procedures performed by a board-certified orthopedic surgeon. At the close of discovery, the plaintiff presented an expert report from a podiatrist (who was licensed to perform the procedure) indicating that the orthopedic surgeon had deviated from the "normal standard of care." The report made no reference as to whether the expert considered the deviation to be from podiatric or orthopedic standards of care. The defense filed a motion in limine seeking to exclude the podiatrist's report on the basis that the podiatrist was unqualified under both common law and the MCare Act to render an expert opinion. Following a hearing held by the trial court on the motion, the motion was granted and subsequently summary judgment was granted as this was the plaintiff's only expert. The Superior Court allowed the plaintiff to address both the common law and MCare Act standards for expert qualifications. After first finding that the podiatrist was not qualified to render an opinion under the more liberal common law standard, the court began its MCare Act analysis by pointing out that §1303.512(a) was really a restatement of the common law standards for rendering expert medical opinion, but that sections (b) through (d) added new requirements. The court then found that while certain requirements of the other subsections may be "waivable," the baseline common law requirements of subsection (a) are not "waivable." Thus, if the expert's opinion is inadmissible under common law, it will not be admissible under the MCare Act. However, the court did not end the analysis at this point. Instead, they turned to the more stringent subsections of the MCare Act and further found that the podiatrist would be disqualified even if he had been able to overcome the common law or "section (a)" standard. The court turned to sub-section (b)(1) of §1303.512, which states that an expert testifying on a medical matter, including standard of care, must possess an "unrestricted physician's license" in any state. The court found that by statute (which included other statutes in addition to the MCare Act) podiatrists are not "physicians." Thus, the court provided an additional basis under the MCare Act for precluding the testimony and adhered to a rather stringent interpretation of expert qualifications as contemplated by the Legislature.
In contrast, a different Superior Court panel saw fit in Gartland to allow a neurologist to render standard of care testimony against a radiologist. At issue was an alleged failure to diagnose a brain tumor in the plaintiff. At the trial court level, the defense challenged the ability of a neurologist to render standard of care testimony against a radiologist by way of a motion for summary judgment, which was granted. On appeal, the Superior Court determined that the plaintiff's expert satisfied both the common law and MCare Act expert qualifications and, therefore, reversed the granting of summary judgment. The Superior Court's reasoning in Gartland can be reconciled in that the issue was one of summary judgment and it found that the curriculum vitae of the neurologist established "prima facie his qualifications to read the X-rays in this case and to offer an opinion on what should have been done under the circumstances." The court reasoned that the neurologist was qualified to render an opinion "at least at the summary judgment stage." The Court focused on the language in the Mcare Act that stated that the proffered expert "must essentially either practice in the same subspecialty or a subspecialty that has a substantially similar standard of care" and be familiar with the standard for the particular care in question. The Court did not address the requirement in the MCare Act that the expert must be board certified by a same or similar board as the physician whose care is being questioned.
In Smith v. Paoli Memorial Hospital, 885 A.2d 1012 (Pa. Super. 2005), the Superior Court affirmed the trial court’s ruling that, in a case against two gastroenterologists, two physicians, one a surgeon and the other an oncologist, could testify as to the standard of care for determining the cause of occult gastrointestinal bleeding. In allowing Drs. Battle and Krutchik to testify, the Court reviewed their preferred qualifications:
[Dr. Battle] is board certified in surgery, which overlaps with gastroenterology for the specific care at issue in this case. [Dr. Krutchik] is board certified in medical oncology, which is a subspecialty of internal medicine, which has a substantially similar standard of care as gastroenterology for the specific care at issue in this case. In addition, both doctors are actively involved in the treatment of patients with gastrointestinal bleeding and cancers.
The Court ruled:
We agree with the trial court that with regard to the specific issue this case presents, the standard of care when presented with a patient with obscure GI bleeding, administrator's experts' expertise overlapped with the expertise of gastroenterologists for purposes of the MCARE Act. As this court noted in Weiner, supra, "Internal medicine is a specialty, of which gastroenterology is a subspecialty. To be certified in gastroenterology, a physician must first be certified in internal medicine." Weiner, 871 A.2d at 1289 n.8.
In Weiner, this court concluded the trial court erred in disqualifying an expert because he did not teach a specific diagnostic technique within the subspecialty of gastroenterology, when he was offered as an expert in gastroenterology to address the standard of care applicable when a patient presented to a gastroenterologist with certain symptoms and a family history of gastrointestinal cancer. Id. at 1289. The Weiner court therefore remanded the case because the record was insufficient to establish the extent, level, or frequency of the expert's teaching activities. Id.
In this case, unlike Weiner, the experts do not claim to possess expertise in the subspecialty of gastroenterology. Rather, they claim their specialties and/or subspecialties overlap with that of gastroenterology as to the standard of care applicable when a patient presents to any appropriately trained medical care provider with an obscure GI bleed. Recently, this court addressed a similar set of facts in Herbert v. Parkview Hospital, 2004 PA Super 287, 854 A.2d 1285 (Pa.Super. 2004), appeal denied, 582 Pa. 710, 872 A.2d 173 (2005).
In Herbert, the patient had a history of end-stage renal failure and had been seen by a nephrologist for some period of time as a result. Patient's wife called for emergency transportation when she found patient on the floor of the kitchen, breathing heavily. He was admitted to intensive care at Parkview Hospital through the emergency room, where it was noted that patient was "breathing funny" and had to be placed in restraints because he was grasping at his throat in the ICU. Id. at 1286.
The following day, the nephrologist saw patient in order to prepare him for in-patient dialysis but did not examine patient's throat or mouth. The day after the nephrologist's visit, patient underwent an emergency intubation, during which a large piece of steak was removed from patient's throat. [***21] Despite the intubation, patient developed an infection at the site and died eight days later. Id. at 1287. The administratrix of patient's estate filed suit against Parkview and various health care providers, including the nephrologist, and called as an expert a specialist in internal medicine ("internist") to testify as to the applicable standard of care for the nephrologist under the facts of the case. Nephrologist argued that the MCARE Act required administratrix to present the testimony of a nephrologist to demonstrate that nephrologist breached the standard of care applicable to a nephrologist treating a patient in the context of a nephrology examination, when he failed to address patient's airway blockage. Id. at 1291.
In addressing the admissibility of the internist's testimony, the Herbert panel focused on the language of the MCARE Act requiring that the expert be familiar with the standard of care for the specific care at issue and practice in the same or a substantially similar subspecialty which has a substantially similar standard of care for the specific care at issue. Id. at 1292, quoting 40 P.S. § 1303.512(c)(1) and (2) (emphasis in Herbert). According to the internist, any physician with specialized training and certification in internal medicine, of which nephrology is a subspecialty, should have noted anomalies in patient's behavior and the notes in the chart concerning patient's symptoms and behavior and concluded that patient's respiratory problems needed immediate attention. Id. at 1292-1293.
As the Herbert panel opined, "The MCARE Act plainly prefers, and in some cases may require, that expert testimony in professional medical malpractice cases come from witnesses with expertise in the defendant's particular subspecialty." Id. at 1294, citing 40.P.S. § 1303.512(c). The Herbert panel declined to hold that the Act required that testimony in all cases be so restricted, observing, "The 'same subspecialty' ideal contained in § 1303.512(c)(2) includes an express caveat, reflecting the Legislature's decision to afford the trial court discretion to admit testimony from a doctor with expertise in another specialty that 'has a similar standard of care for the specific care at issue. '" Herbert, 854 A.2d at 1294,[***23] quoting 40 P.S. § 1303.512(c)(2) (emphasis in Herbert).
According to Herbert, "This reading comports with Pennsylvania courts' historical deference to trial courts' discretion in deciding whether to admit evidence at trial and is consistent with the plain language of the statute itself." Id. As this court observed in Herbert, "Indeed, the wisdom of restricting expert testimony to that of a nephrologist in this case might credibly be questioned, where 'the specific care at issue' is the failure to provide care in the presence of an allegedly clear respiratory problem the likes of which [internist] testified should have been obvious to [nephrologist]." Id. (emphasis in Herbert).
We recognize the analytical distinctions between this case and Herbert, as gastroenterology is not a subspecialty of oncology or general surgery. It is, however, a subspecialty of internal medicine. . . From the foregoing, it is evident that both of administrator's experts were substantially familiar with the applicable standard of care for the specific care at issue and practiced in a subspecialty with a substantially similar standard of care for the specific care at issue. 40 P.S. § 1303.512(c)(1), and (2). See Gartland v. Rosenthal, 2004 PA Super 134, 850 A.2d 671, 673, 675-676 (Pa.Super. 2004) (opining that a neurologist was qualified to testify as to the standard of care for a radiologist reading a CT scan of the brain where the specific treatment at issue was failure to report on the possibility of a tumor and to recommend an MRI). Additionally, while Drs. Battle and Krutchik were not board-certified gastroenterologists, they were, if not certified by a similar board pursuant to subsection (c)(3), certainly actively involved and/or teaching in a related field of medicine so as to possess sufficient training, experience, and knowledge to provide testimony, pursuant to subsection (e).
We also find misplaced gastroenterologists' heavy reliance on Wexler v. Hecht, 2004 PA Super 95, 847 A.2d 95 (Pa.Super. 2004), allocatur granted, 583 Pa. 700, 879 A.2d 1258 (2005). This court in Wexler found no abuse of discretion in the trial court's decision to preclude the testimony of plaintiff's expert, a podiatrist, in part because a podiatrist does not possess an unrestricted physician's license to practice medicine, as required by 40 P.S. § 1303.512(b)(1). There is no dispute in this case as to administrator's experts' license to practice medicine.
In Cimino v. Valley Family Medicine, 912 A.2d 851 (Pa. Super.2006), the Superior Court affirmed the Superior Court affirmed a trial court’s ruling that a doctor was precluded from testifying in a medical malpractice action because his obligation to comply to specific terms while serving a state-imposed probation disqualified him from having an “unrestricted physician’s license” under Section 1303.512(b)(1) of the MCARE Act.
According to the opinion, Thomas Cimino died due to various ailments of the gastrointestinal system and liver. Pamela Cimino, the administratrix of Thomas’ estate, commenced action against Valley and Thomas’ doctors, alleging negligence in caring for the man prior to his death. Just before the case was brought to trial, Valley alleged that Cimino’s medical expert, Dr. Herbert Rubin, was incompetent to testify because his medical license had been “restricted” once the Medical Board of California placed him on probation. The trial court agreed, holding that even though the revocation of Rubin’s license was stayed and he was allowed to continue his practice, the five-year probation period and requirements he was put under no longer gave him an “unrestricted physician’s license” under the MCARE Act.
After appeal, the Superior Court acknowledged the term “unrestricted” was undefined in the MCARE Act but held that its common usage denotes a medical license with “no limitations or restraints.” Therefore, since Rubin had to comply to certain stipulations of his probation, he did not meet this definition. The case was dismissed because Rubin was Cimino’s only medical expert.
RECENT CASE: Jacobs v. Chatwani, 2007 PA Super 102; LEXIS 726 (April 13, 2007)
It was alleged by plaintiff that, during the performance of a hysterectomy, Dr. Chatwani caused damage to her ureter. By motion in limine, she sought to exclude the testimony of Defendants' urology expert, Irvin H. Hirsch, M.D. Dr. Hirsch opined that the injury to Plaintiff's ureter was not due to any negligence in the performance of the hysterectomy but, rather, was the result of a known risk involved in this type of surgery from temporary loss of blood supply to the ureters occurring when the uterine arteries are clamped-off in order to remove the uterus. The trial court denied Plaintiff's motions in limine. The jury returned a verdict in favor of the defendants and the Superior Court affirmed.
Plaintiff asserted that the trial court erred by qualifying Dr. Hirsch, a board-certified urologist, to testify as a defense expert on the standard of care pertaining to an obstetrician/gynecologist performing a hysterectomy. She contended that he was not qualified to do so under both common law standards and under the Medical Care Availability and Reduction of Error Act (MCARE Act). In response to Plaintiff's claim, the trial court stated that Plaintiff was mistaken in her assertion that Dr. Hirsch testified on the standard of care applicable to an obstetrician/gynecologist performing a hysterectomy. The trial court explained that Dr. Hirsch "did not testify about the standard of care of an obstetrician/gynecologist but rather about the standard of care involved in avoiding uretal injury during abdominal surgery and about a diagnostic test used to determine whether a ureter was damaged during surgery, subjects which surely were within his area of expertise." The Superior Court agreed and concluded that “Dr. Hirsch was qualified to provide this testimony under both the MCARE Act and common law standards.”
Plaintiff claimed that Dr. Hirsch was not qualified to testify about the "standard of care required of one performing a hysterectomy." Plaintiff specifically challenged Dr. Hirsch's qualifications under subsection (c)(2), claiming that he does not practice in the same subspecialty as Dr. Chatwani or another subspecialty that has a substantially similar standard of care for the specific care at issue. Plaintiff asserted that the trial court erred by concluding that Dr. Hirsch's "field of expertise encompassed the medical care being challenged." Plaintiff also argued that Dr. Hirsch was not qualified to opine that "Dr. Chatwani adhered to the requisite standard of care by taking 'necessary measures to protect the ureter.'" The Superior Court rejected these arguments:
We agree with the trial court that, contrary to Plaintiff's assertion, Dr. Hirsch did not testify regarding the standard of care in the performance of a hysterectomy. Rather, the testimony above reveals that Dr. Hirsch testified specifically with regard to the common urologic procedure of cystoscopy and protection of the ureters during surgery, which is subject to the same standard of care whether the person performing the pelvic surgery is a urologist or a gynecologist. Other parts of the trial record reveal that Dr. Hirsh provided extensive testimony with regard to the diagnostic procedures that had been performed on Plaintiff postoperatively, such as cystoscopy, indigo carmine infusion, and intravenous pyelogram (IVP), all of which were well within his area of expertise. He also provided testimony with regard to causes of uretal injury, as further described below. Thus, the trial court did not err by concluding that Dr. Hirsch's testimony was within his area of expertise as a board-certified urologist - a field that encompassed the specific care being challenged. See 40 P.S. § 1303.512(c).
At trial, Dr. Hirsch explained that the uterine arteries, which supply blood to both the uterus and the ureters, must be "tied-off" during surgery in order to remove the uterus. This necessary interruption of blood supply during the surgical procedure, especially in patients like Plaintiff who have cardiovascular disease, may result in scarring to the ureter, known as a devascularization injury. He opined that even "if a surgery is done perfectly technically correct, and even if you have your eyes on the ureter throughout your operation ... nature takes its course, scarring is a natural phenomenon and that can result in leakage of urine." He opined that Plaintiff's medical history of vascular disease, hypertension, pulmonary embolism, blood clots, and heart failure, may have contributed to the risk of devascularization injury. At trial and in his reports, he opined that the delayed onset of Plaintiff's urinary leakage, i.e., three to four weeks postoperatively, suggested a devascularization injury rather than an injury to the ureter occurring during the course of the surgery. In other words, he opined that if the injury had been caused intraoperatively, as by a needle puncture, the symptom of urinary leakage would have manifested itself immediately or at least within the first postoperative week.
