Defense Digest

George V. Ellis: The Next Wave Of MCare Interpretation

In George v. Ellis, 2006 Pa.Super. LEXIS 3766, the Pennsylvania Superior Court provided guidance on the interpretation of the MCARE Act, specifically reiterating that the MCARE Act applies retroactively and explaining that it is to be considered a procedural, rather than substantive, rule of law. The court explained that principles of "fundamental fairness" did not apply to give the plaintiff additional time to secure a new expert, and the court carefully and methodically addressed the MCARE Act requirements and the need to comply with each requirement, unless expressly excused. Specifically, the Superior Court’s 2006 holding in George precluded the plaintiff from presenting the expert testimony of the proffered orthopedic surgeon, however, because he was not licensed to practice in the United States. The court affirmed summary judgment for the defendant.

Procedural Background

In July of 2000, the plaintiff filed a complaint naming, among other defendants, Thomas J. Ellis, D.O. The plaintiff claimed that the defendants performed three unnecessary knee surgeries. At the trial in Blair County, which commenced on May 6, 2002, the plaintiff offered the expert testimony of orthopedic surgeon Dr. Bull. He was licensed to practice in Canada and was to testify on the standard of care against the defendants. After voir dire on his qualifications, the trial court concluded that Dr. Bull was not qualified to testify, and the court entered a compulsory non-suit from which the plaintiff appealed to the Superior Court.

On appeal from the non-suit, the Superior Court reversed the trial court and remanded the case, holding that Dr. Bull did have the qualifications necessary to testify and the jury should have been free to reject or accept his testimony. See George v. Ellis, 2003 Pa.Super. 121, 820 A.2d 815 (Pa.Super. 2003) (hereinafter "George I"). In its holding, the Superior Court did not address the Medical Care Availability and Reduction of Error Act ("MCARE"), which was approved on March 20, 2002, but not enacted until May 20, 2002, two weeks after the trial commenced. See 40 P.S. 1303.101 et seq. The Superior Court based its remand on common law expert qualification standards.

Following the remand, the defendants filed a Motion for Summary Judgment and a Motion in Limine and again asserted that Dr. Bull was not qualified to testify. This time the defendants relied upon the MCARE Act, now in effect. The defendants asserted that he did not satisfy MCARE’s requirements.

After a hearing on the defendant’s motions, the trial court granted summary judgment. The plaintiff again appealed to the Superior Court, presenting three issues for appeal. Specifically, the Superior Court in George v. Ellis, 2006 Pa.Super. 306, 2006 Pa.Super. LEXIS 3766 (hereinafter "George II"), reviewed (a) whether the Superior Court’s ruling in George I precluded the trial court from again ruling on the expert qualifications of Dr. Bull; (b) whether the MCARE Act should be deemed to apply retroactively, and if it is retroactive, whether principles of "fundamental fairness" allowed the plaintiff to secure an alternative expert; and (c) whether the proffered expert, Dr. Bull, to qualified to testify under the standards set forth in the MCARE Act if the decision of George I was not binding on the trial court on remand.

Analysis

The law of case doctrine did not preclude the trial court from revisiting the question of whether Dr. Bull was qualified to testify as an expert since the court had not ruled on whether Dr. Bull was qualified under the MCARE Act.

The Superior Court’s analysis first addressed the plaintiff’s claim that the law of case doctrine precluded the trial court from revisiting the issue of Dr. Bull’s qualifications as an expert. Specifically, the plaintiff claimed that the Superior Court’s decision in the 2003 opinion, George I, controlled.

The law of case doctrine prevents (i) a transferee trial court from altering the resolution of a legal question decided by an appellate court in the matter, (ii) an appellate court from altering the resolution of a legal question previously decided by the same appellate court, and (iii) a transferee trial court from altering the resolution of a legal question previously decided by the transferring trial court. See Commonwealth v. Viglione, 842 A.2d 454, 461-62 (Pa.Super. 2004). In George II, the Superior Court noted that a departure from the law of case doctrine is permitted and appropriate where "exception circumstances such as where there has been an intervening change in the controlling law…" The court further noted that George I did not address whether Dr. Bull was qualified to testify as an expert under the standards of the MCARE Act and, for that reason, the trial court had the right to address that issue on remand. Essentially, the Superior Court in George II noted that the defendant-appellees were raising a different issue on remand, and the issue was not precluded by the law of case doctrine.

The MCARE Act does not deal with any substantive rights but is a procedural rule that can be applied retroactively, and principles of "fundamental fairness" did not apply to permit the plaintiff time to retain a substitute expert.

The Superior Court’s 2006 decision in George II also addressed and rejected the plaintiff’s claim that the MCARE Act should not apply retroactively. The Superior Court noted that a presumption against retroactively does not preclude application of a purely procedural statute. The court reasoned that the MCARE Act "describes in detail the qualifications that a medical expert must possess to testify in a medical professional liability action" and "does not deal with any substantive rights of a party…" The court explained that the MCARE Act "affects a procedural avenue by which a party may attempt to enforce those rights" and that "the MCARE Act could apply retroactively." This reiterated the conclusion previously made in Bethea v. Phila. AFL-CIO Hosp. Ass’n, 871 A.2d 223 (Pa.Super. 2005), holding that the MCARE Act may be retroactively applied.

The court then noted that the plaintiff had essentially waived the argument that "fundamental fairness" permitted her to obtain an alterative expert. In rejecting this argument, the court noted that the plaintiff failed to support the statement with argument or relevant authority and she, therefore, waived the argument. In a footnote, the court added that the plaintiff was aware of the implications of the MCARE Act at the time of the first trial, when the first challenge was raised. The plaintiff had from May 20, 2002, to February 28, 2005, to secure an alternative expert but failed to do so.

Dr. Bull was not qualified to testify under the MCARE Act because he is not licensed to practice medicine in the United States.

In addressing the plaintiff’s third and final question on appeal, the Superior Court reviewed the specific requirements set forth in the MCARE Act and concluded that the proffered expert was not qualified because he did not possess an unrestricted physician’s license to practice medicine in the United States. In reaching this conclusion, the court carefully reviewed the various requirements of MCARE and provided guidance on each requirement.

The court addressed the 40 P.S. 1303.512(c) requirements that the expert "practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e)." The Superior Court's opinion in Herbert v. Parkview Hosp, 854 A.2d 1285 (Pa.Super. 2004), noted that the exceptions in (d) and (e) allow trial courts to admit testimony from a doctor with expertise in another specialty that "has a similar standard of care for the specific care at issue." 40 P.S. 1303.512(c)(2). The Superior Court in George II recognized that Dr. Bull had the education and training to know when the specific knee procedure at issue in the case was necessary and proper and he, therefore, met the requirements set forth in 40 P.S. 1303.512(c).

George II also addressed the exception set forth for subsection (e). The MCARE Act allows "in the event that the defendant physician is certified by an approved board, [the expert must] be board certified by the same or a similar approved board, except as provided in subsection (e)." Although Dr. Bull was not board certified in the United States, the court concluded that the similarities between the board certification requirements in the United States and the requirements for a Canadian Fellowship were substantially similar so as to satisfy 40 P.S. 1303.512(c)(3). They further noted that a court has the discretion to waive the same specialty and board certification requirements for experts who have sufficient training, experience and knowledge so as to provide testimony as a result of active involvement in a related field of medicine within the previous five-year time period, referencing 40 P.S. 1303.512(e). The Superior Court concluded that Dr. Bull satisfied the requirements of subsection (e).

In spite of reaching these conclusions regarding Dr. Bull’s qualifications, the Superior Court ruled that summary judgment was proper because Dr. Bull was, nevertheless, unqualified to testify under MCARE because he did not possess an unrestricted physician’s license to practice medicine in the United States. The decision of the trial court to grant summary judgment was affirmed.

* Eileen is an associate in the firm's Philadelphia, Pennsylvania, office. She can be reached at (215) 575-3569 or via email at ekkeefe@mdwcg.com.