Defense Digest

Pennsylvania Appellate Courts Begin Interpreting Expert Qualifications Under the MCare Act
By Paul A. Bechtel, Jr., Esq. & Matthew C. Wilson, Esq.*

The Pennsylvania appellate courts have now begun to render 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.  If anything, the decisions underscore that there remains a great deal of judicial discretion when ruling on expert qualifications, despite an unambiguous legislative mandate to make expert qualification more uniform and stringent in medical malpractice cases.  Clearly, it appears that the Pennsylvania Supreme Court will have to render the final word concerning expert standards under the MCare Act.

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 reports 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.  At the time of the granting of the motion, the trial court specifically indicated that the decision was not predicated upon the new provisions contained in the MCare Act, but rather on common law.  However, in the trial court's written opinion filed as a result of the plaintiff's appeal, the court ruled for the first time that the expert was also unqualified under the MCare Act.

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 importantly found that the expert provisions of the MCare Act applied to the case, even though the Act was not passed until after the filing of the plaintiff's complaint. 

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 "waiveable," the baseline common law requirements of subsection (a) are not "waiveable."  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.

Similar to Wexler, although the new expert provisions of the MCare Act were in effect at the time of the trial court's ruling, the court reverted to the common law standard.  Likewise, on appeal, the Superior Court noted that the trial court should have assessed the neurologist's qualifications under MCare Act provisions.  The court then went on to find 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 is peculiar as the court appears to create some sort of new standard in ruling on expert qualifications in the context of summary judgment.  The plaintiff's only response in opposition to the motion was to submit the curriculum vitae of the neurologist.  The Superior Court found that this submission 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" and tersely summed up the stringent provisions of the new MCare Act by indicating 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 failed to comment at all in the main body of the opinion concerning 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.  By failing to comment on this important provision, the court appears to be giving great weight to the "waiveable" provisions of the MCare Act, thus, in essence, reverting back to the common law standard, at least in the context of summary judgment.  This, of course, begs the question as to whether the qualifications can be reassessed at the trial stage.

These two cases seem to indicate that the new expert provisions contained within the MCare Act are subject to a wide range of interpretation, and perhaps, the old common law standard remains viable, as it appears the Superior Court will revert to this standard in assessing the "waiveable" portions of the MCare Act.  Nonetheless, at a minimum, the two cases firmly establish that the "retroactive" application of the MCare Act expert qualifications provisions is proper.

*Paul is a shareholder in our Philadelphia office and can be reached at (215) 575-2617 or pbechtel@mdwcg.com.  Matthew is an associate in our Philadelphia office and can be reached at (215) 575-2721 or mattwilson@mdwcg.com.