Defense Digest

In Wexler v. Hecht, 928 A.2d 973 (Pa. 2007), the Pennsylvania Supreme Court recently upheld the judgment of the Philadelphia Court of Common Pleas that a podiatrist was not competent to testify as an expert witness in a medical malpractice action brought against an orthopedic surgeon. In a 4-3 decision, the Supreme Court reasoned that since the plaintiff's expert, Lawrence Lazar, D.P.M., received his degree from a school of podiatric medicine and not a medical school in the traditional sense, he was not considered a physician holding an unrestricted license to practice medicine and, therefore, was unqualified under the Medical Care Availability and Reduction of Error (MCARE) Act to render an expert opinion against an orthopedic surgeon.

The plaintiff, Beverly Wexler, commenced an action against Paul J. Hecht, M.D., asserting a medical malpractice claim arising out of bunionectomies. Dr. Hecht filed a Motion in Limine to preclude the plaintiff's expert, a doctor of podiatric medicine, from testifying at trial on the grounds that, as a podiatric surgeon, he was not competent to testify concerning the standard of care pertaining to an orthopedic surgeon. Counsel for Dr. Hecht attacked the plaintiff's expert's qualifications on two fronts: first, under the common law standard that Dr. Lazar was not qualified to render expert testimony in that he did not possess specialized knowledge in the subject matter of the injury, and second, the more stringent standards set forth in the MCARE Act. The plaintiff argued that her expert was competent to testify under both the common law and MCARE Act and requested a hearing to elaborate on his basis for knowledge or, in the alternative, the opportunity to procure a new expert. However, the Philadelphia County Court of Common Pleas granted Dr. Hecht's Motion in Limine, indicating in an oral ruling that it was applying the common law standard. Thereafter, counsel for Dr. Hecht filed a Motion for Summary Judgment which was granted by the court, as the plaintiff lacked essential testimony regarding the governing standard of care to support her medical malpractice claims.

The plaintiff appealed the entry of Summary Judgment and the Common Pleas Court issued an opinion under Rule of Appellate Procedure 1925(a). However, in contrast to its prior ruling under common law standard, the Court of Common Pleas, on appeal, rested its decision primarily on the MCARE Act and specifically looked to four provisions of §512 of the MCARE Act.

The Superior Court, in a divided opinion, affirmed the trial court's ruling, holding that the trial court had not abused its discretion by granting the defendant's motion to exclude the plaintiff's expert's testimony under either the common law or MCARE Act standards. The plaintiff thereafter appealed this decision, and the Pennsylvania Supreme Court upheld the preclusion of the plaintiff's expert by focusing on three main areas: (1) the applicability of the MCARE Act; (2) the application of the MCARE Act's competency standard; and, (3) the refusal to conduct a hearing.

In her appeal, the plaintiff asserted that if the Court were to apply the competency standard under the MCARE Act, it would be an impermissible retroactive application of a new law. Counsel for Dr. Hecht argued that the application of the MCARE Act's expert competency standard for pending litigation must be regarded as prospective "as it does not alter a plaintiff's substantive burden of proof or entitlement to relief, but merely regulates the manner of proof." The Supreme Court, in finding for Dr. Hecht, relied on Judge Beck's Opinion in Warren v. Folk, 2005 Pa. Super. 367, 886 A.2d 305 (Pa. Super. 2005), holding that an adjustment of an evidentiary standard relative to a future trial could not be construed as a retroactive application. In Warren, Judge Beck maintained that "a rule or statute does not operate retrospectively merely because it is applied in a case that arises from conduct that preceded its promulgation or alters expectations deriving from prior laws." Wexler, 928 A.2d at 979, citing Warren, 886 A.2d at 308. Instead, the court must determine whether the new provision attaches new legal consequences to events completed before its enactment. The Pennsylvania Supreme Court concluded that the delineation of requirements governing the presentation of expert witness testimony that are not unduly burdensome do not alter vested rights of the parties or give pertinent antecedent events a different legal effect, assuming there was adequate time for adjustment. Therefore, under §512(b)(1) of the MCARE Act, there is "no vested entitlement under Pennsylvania common law to present expert testimony in a malpractice action against a medical doctor from a witness who does not possess an unrestricted physician's license. Instead, issues regarding the competency of an expert are left to the discretion of the trial court.

Secondly, in upholding the trial court's decision, the Pennsylvania Supreme Court examined the specific requirements of the MCARE Act's competency standard. Under §512 of the MCARE Act, an expert witness testifying about the applicable standard of care must possess an unrestricted physician's license to practice medicine. The MCARE Act specifically distinguishes between physicians and podiatrists. The Supreme Court analyzed the specific definitions found within the Medical Practice Act of 1974, as well as the Osteopathic Medical Practice Act of 1978, and found that the Legislature was aware of a clear distinction between the regulation of the practice of medicine generally and the regulation of the practice of podiatric medicine. The Supreme Court reasoned that the MCARE Act's specific language requiring an expert to possess "an unrestricted physician's license to practice medicine unambiguously denotes a medical doctor or osteopath licensed by a State Board appropriate to such practices."

Finally, the Supreme Court analyzed whether the trial court erred by denying the plaintiff's expert the opportunity to testify regarding his qualifications at a hearing on defense counsel's Motion in Limine. The Supreme Court quickly disposed of this argument, finding that as a podiatrist, the plaintiff's expert was not licensed as a physician to practice medicine by the State Board of Medicine and, therefore, the trial court did not err in granting defense counsel's Motion in Limine.

The practical impact of the Court's decision acts as a double-edged sword. On the one hand, this case defines the requirements necessary for expert testimony. However, it might also force plaintiffs to retain more qualified experts, thereby removing one avenue to attack plaintiff's experts at trial.

* Robert is an associate in the King of Prussia, Pennsylvania, office where he focuses primarily in the areas of medical malpractice and professional liability. He can be reached at (610) 354-8272 or rpgood@mdwcg.com.