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Health Care

Defense Digest

Proposed Expert’s Qualification to Proffer Standard of Care Opinions Must Be Evaluated Under the Entirety of Section 512 of the MCARE Act

Defense Digest, Vol. 31, No. 2, June 2025

June 1, 2025

by Tyler R. Price

Key Points:

  • Standard of Care: Patient assessment and discussion of procedures to be performed to evaluate the patient prior to surgery fall under the purview of the standard of care, not informed consent. 
  • Expert Qualifications: Proper analysis of an expert’s qualifications encompasses more than the expert’s board certification, as directed by the MCARE Act.
  • Superior Court remanded to trial court with instructions to revisit its decision regarding the gastroenterologist’s qualifications to offer standard of care opinions against a colorectal surgeon.

An alleged failure to assess a patient via non-surgical interventions prior to performing a surgical procedure may result in a breach of the standard of care. A recent trial court opinion addressed the proper analysis of an expert’s qualification to proffer standard of care opinions as instructed by the MCARE Act. The Pennsylvania Superior Court, in McAleer v. Geisinger Medical Center, 332 A.3d 38 (Pa. Super. 2025), reversed and remanded the trial court’s decision to grant summary judgment in favor of the health care defendants. The Superior Court directed the lower court to revisit the standard of care expert’s qualifications to determine if he is qualified to offer such testimony. 

Facts
A colonoscopy revealed the patient had a large polyp that was unable to be completely removed due to its size and the patient’s anatomy. The patient was referred by the primary care physician to a colorectal surgeon for evaluation of either a possible partial colectomy or a repeat colonoscopy under full anesthesia.

At the initial evaluation with the colorectal surgeon, the surgeon discussed laparoscopic, possible open right hemicolectomy, possible ostomy, and the risks of each procedure. Of note, these were all surgical interventions, and the assessment prior to surgery—a colonoscopy—was never discussed. The colorectal surgeon performed a laparoscopic right hemicolectomy, and the patient was discharged two days later.

Six days after surgery, the patient presented to the emergency department with abdominal complaints. Post-surgical complications, including a blood clot and tissue death, resulted in the patient undergoing several surgical procedures to remove the damaged tissue. 

The patient filed a lawsuit alleging negligence and claiming the colorectal surgeon recommended and performed a procedure that was counter-indicated for the patient’s condition.

Standard of Care Includes Proper Assessment and Discussions of Assessment Procedures Prior to Surgery 
In order to set forth a cause of action in negligence, a plaintiff is required to plead sufficient facts which would establish that: (1) the doctor owed them a duty of care; (2) the doctor breached that duty; (3) the patient was injured; and (4) the injuries were proximately caused by the doctor’s breach of duty. 

Here, the patient claimed the colorectal surgeon recommended and performed the wrong procedure without properly assessing the patient prior to performing the surgery to remove the polyp. The patient’s experts opined: the colorectal surgeon breached the standard of care by failing to properly assess the patient; had the colorectal surgeon properly assessed the patient, then a colonoscopy would have been performed; and, consequently, the patient would not have suffered post-surgical complications. Further, the court noted there was no evidence that the patient would have refused the colonoscopy under general anesthesia or an endoscopic procedure. Both procedures are non-surgical assessments performed prior to surgery. 

The court concluded that the patient was not given any option within the standard of care. Thus, the patient did not have the opportunity to even choose or reject an assessment option within the standard of care. 

Qualifications to Offer Expert Testimony Requires Analysis Beyond Proposed Expert’s Board Certification 
Through discovery, the patient submitted the expert report of a physician who was board certified in internal medicine and gastroenterology. The gastroenterologist concluded that the colorectal surgeon failed to fully assess the patient prior to surgical intervention, violating the standard of care. The trial court disqualified the gastroenterologist from offering standard of care opinions of a colorectal surgeon based solely on his curriculum vitae and for failing to practice in the same subspecialty as the colorectal surgeon. The appellate court disagreed. 

The Superior Court recognized that the trial court failed to consider expert qualifications under the MCARE Act as a whole. Specifically, the trial court made no determination of whether the gastroenterologist and the colorectal surgeon had substantially similar standards of care for the specific care at issue. Furthermore, the trial court made no determination as to whether the gastroenterologist possessed sufficient training, experience, and knowledge to provide testimony as a result of his involvement in a related field of medicine. 

In reversing the judgment and remanding for a new trial, the Superior Court held that it was improper to disqualify the gastroenterologist’s opinions based solely on his certification and curriculum vitae. 

Implications and Conclusions
The Superior Court’s decision in this case highlights the critical balance between the standard of care at every step in patient care and when experts may be qualified to offer opinions as to each standard of care. This case highlights the importance of physicians consistently advocating for their patients throughout every stage of care and ensuring that all alternatives to surgical intervention are thoroughly explained, in alignment with the appropriate standard of care.

The Superior Court’s ruling emphasizes the need to analyze an expert’s qualifications to render standard of care opinion beyond the same specialty analysis and said expert’s curriculum vitae. The court’s decision reminds us that we must expand our analysis of an expert’s qualifications to consider the MCARE Act entirely, including whether a proposed expert possesses sufficient training, experience, and knowledge to provide testimony as a result of involvement in a related field of medicine.

This case was remanded to the trial court with instructions to revisit its decision regarding the gastroenterologist’s qualifications to offer standard of care opinions against a colorectal surgeon. 

*Tyler is a member of our Health Care Department and works in our Philadelphia, PA office. 

 

Defense Digest, Vol. 31, No. 2, June 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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