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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.

Firm Highlights

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.