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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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Thought Leadership

On the Pulse… Profile of the Intellectual Property, Technology & Media Litigation Practice Group

The Intellectual Property, Technology & Media Practice provides comprehensive, end-to-end litigation and counseling services to national and global insurance carriers. We are committed to delivering a disciplined, cost-effective, and creative defense tailored to each client's needs. Our attorneys combine deep litigation experience with technical and scientific backgrounds, enabling us to understand our clients' technologies and effectively communicate complex concepts to adversaries, judges, and juries. We also assist clients with risk management, pre-suit dispute resolution strategies, and, when necessary, the litigation of claims and complaints in courts across all 50 states through trial. In addition, we work closely with our eDiscovery team to address complex issues involving electronically stored information, including data preservation, electronic discovery, computer imaging, and allegations of spoliation. These issues are often critical to the intellectual property and technology matters we handle every day, and our integrated approach helps clients navigate them efficiently and effectively. Our attorneys represent clients in patent infringement, copyright, trademark, and trade secret disputes in the state and federal courts in jurisdictions throughout the United States. Many of our clients also face highly technical professional liability claims involving computer systems, software, cybersecurity, data management, and other technology-related services. We take a proactive approach to managing risk and controlling exposure, working with clients and their insurers to develop effective pre-suit strategies and avoid litigation whenever possible through mediation, settlement conferences, and other alternative dispute resolution methods. When litigation cannot be avoided, we remain steadfast in serving our clients' legal and business objectives, recognizing the significant costs and operational burdens that complex litigation can impose. We work closely with insurance carriers to help protect our clients' brands, intellectual property, and business interests while delivering a thorough and cost-effective defense. We additionally maintain a strong Media Practice. Our attorneys have extensive experience handling First Amendment and media-related disputes, including claims involving defamation, libel, privacy rights, injunctions, gag orders, and prior restraints on speech. Clients benefit from our practical litigation strategies and thoughtful approach to managing matters that often attract significant public attention and scrutiny. With 19 offices throughout Pennsylvania, New Jersey, New York, Delaware, Florida, Ohio, and Connecticut, we maintain a strong presence across the East Coast. We serve as national counsel for insurance carriers and have handled matters throughout the United States, from Hawaii to Washington, and virtually every jurisdiction in between. Our national reputation ensures that our clients receive not just the best skilled legal representation but also practical business-minded guidance in determining the proper legal response to all claims and lawsuits. David chairs both the Privacy and Data Security Practice and the Intellectual Property, Technology and Media Litigation Practice. He may be reached at djshannon@mdwcg.com.

Thought Leadership

On the Pulse…Other Notable Achievements

THOUGHT LEADERSHIP Dana Gittleman (Philadelphia) authored the article, “The Importance of Memorializing Settlement Terms," appearing in the PLUS Blog on April 27, 2026. In the article, Dana discusses a new Pennsylvania Superior Court decision that shows how overlooked or undocumented terms can unravel even routine negotiations, especially when parties have differing expectations or one side is unrepresented. Jordan Mazzoni (Scranton) authored the article, “The Best Defense is Already in the File Documentation in Civil Rights Litigation," published on PLUS Blog on July 27. The article discusses how documentation is an essential defense to public entity & civil rights litigation. SPEAKING ENGAGEMENTS ​John L. Slimm (Mount Laurel) moderated and presented on claims and defenses involving lawsuits against the plaintiffs' bar at the 2026 Legal Malpractice Update for the New Jersey Institute for Continuing Legal Education. 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Casey Coyle (Harrisburg and Philadelphia) presented "Recent Civil Law Decisions and Civil Rule Updates" at the Pennsylvania Conference of State Trial Judges in Hershey. The session provided attendees with insights into recent developments in Pennsylvania civil law and examined updates to the rules governing civil practice, helping practitioners stay informed on significant changes affecting litigation and courtroom procedure. PUBLISHED WORKS Josh J.T. Byrne (Philadelphia) and Alesia S. Sulock (Philadelphia) authored the article, “Whither the Private Reprimand," published in The Legal Intelligencer on July 22, 2026. 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Kimberly Kanoff Berman and Seth Altman (Fort Lauderdale) authored the article, “A Unified, Single Claim for Damages Requires Apportionment in a Joint Proposal: What the Decision in 'Trace Elements' Means for Property Insurance Claims,” published on August 6 in the Daily Business Review. The article analyzes the Florida Supreme Court's decision in Trace Elements v. MacKensen and examines its implications for property insurance claims in Florida, particularly regarding the apportionment of damages in joint settlement proposals. RECOGNITION Tiere Phillips (Pittsburgh) was elected to the Allegheny County Bar Association’s Judicial Committee for a Diverse Seat. As one of only three attorneys elected to this role, Tiere will help ensure fairness and equality in representation during judicial evaluations and recommendations for election and reelection in Allegheny County. Steven A. 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Thought Leadership

On the Pulse…Recent Appellate Victories

Kimberly Berman (Fort Lauderdale) and Sontho SaintGermain (Orlando) succeeded in obtaining an affirmance by the Second District Court of Appeal of a final judgment in a slip-and-fall premises liability matter on behalf of a business establishment and property owner. The plaintiff was a business invitee who sued the property owner for negligence after she fell while riding her electric bicycle through its landscaped parking lot. During discovery, the plaintiff claimed the fall occurred while she was traversing through a section “covered heavily in leaves” though she could not identify how she fell nor whether there were any objects or foreign substances causing her fall. The property owner moved for summary judgment, asserting the accumulation of leaves on the parking lot was an open and obvious, naturally occurring condition that could not constitute a dangerous condition to impose liability on a property owner. The court granted summary judgment in the property owner’s favor. After oral argument, the Second District Court affirmed per curiam the final judgment in the property owner’s favor. Carrie Collier v. Cars MTI-4 L.P. d/b/a Lazydays RV Resort, No. 2D2025-1980 (Fla. 2d DCA May 13, 2026). Kimberly House (Philadelphia) succeeded in obtaining a victory in the Superior Court of Pennsylvania that reversed the trial court’s decision and remanded the case for reinstatement of the jury verdict which was originally won by Gary Samms (King of Prussia/Philadelphia). (The underlying medical malpractice case involved claims seeking more than $5 million in damages for serious eye injuries including a detached retina and macular hole.) At trial, the jury returned a defense verdict finding that the defendant’s negligence was not a cause of the plaintiff’s injuries. The trial judge granted the plaintiff’s post-trial motions and ordered a new trial solely on the issue of damages. The Superior Court found that the trial court abused its discretion in finding that causation was not disputed and that the jury’s finding of no causation was against the weight of the evidence. Busanic v. Premier Orthopaedic & Sports Medicine Physical Therapy, 2026 Pa. Super. Unpub. LEXIS 1140 (Pa. Super. Apr. 28, 2026). Suzanne Tighe (Scranton/Philadelphia), Allison Krupp (Harrisburg)  and Christopher Woodward (Harrisburg) succeeded in obtaining an affirmance by the Superior Court of Pennsylvania of a non-jury trial decision in favor of an insurance company. Plaintiffs asserted claims under the Pennsylvania Bad Faith Statute, 42 Pa.C.S. § 8371, following a statutory arbitration award in excess of the available underinsured motorist (UIM) coverage. The trial court held the plaintiffs failed to prove bad faith in the handling of the UIM claim and entered judgment in favor of the insurer. The Superior Court rejected the plaintiffs’ contentions that the trial court misapplied the applicable bad faith law, set forth in Rancosky v. Washington Nat’l Ins. Co. 170 A.3d 364 (Pa. 2017), and affirmed the trial court. The Superior Court further held that plaintiffs’ waived their requests for judgment notwithstanding verdict (JNOV) and new trial by failing to properly preserve these issues at trial and in post-trial motions. Brown v. U.S. Auto. Ass’n, 2026 Pa. Super. Unpub. LEXIS 1393 (May 27, 2026). *Results do not guarantee a similar result.