2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

nurse was prevented from making under Professional Nursing Law, 63 Pa. Cons. Stat. § 211 etseq.In Freed, the trial court sustained Defendant’s objection that Plaintiff’s registered nurse,who was to provide expert testimony regarding the relevant nursing standard of care and to offerher medical opinion on the causation issues surrounding Plaintiff’s bed sores, should not bepermitted to offer any expert medical opinion as she was not a medical doctor. A compulsorynonsuit was granted when Plaintiff failed to provide any additional medical testimony on thecausation issue.As noted above, on appeal the Superior Court disagreed with the trial court and ruled thatthe nurse was permitted to provide testimony as to the standard of nursing care and on the issueof causation. The Supreme Court then held that the Flanagan decision should be overruled to theextent that it “prohibits an otherwise competent and properly qualified nurse from giving expertopinion regarding medical causation.” In a footnote, the Court noted that this decision wouldhave limited impact as the MCARE Act clearly states that in order for a witness to be qualifiedas an expert witness to testify on issues such as the appropriate standard of care, causation, andthe nature and extent of injuries in medical professional liability actions, that the witness must bea physician licensed to practice medicine and must be engaged in or recently retired from activeclinical practice or teaching. Therefore, Freed allows for nurses to testify as experts in cases thatdo not involve medical professional liability actions against physicians, such as those againstnon-physician health care providers.The issue of the required degree of certainty was also recently presented in Vicari v.Spiegel, 936 A.2d 503 (Pa. Super. Ct. 2007), appeal granted, 972 A.2d 410 (Pa. 2009), aff’d, 989A.2d 1277 (Pa. 2010). Plaintiff filed suit alleging that Defendants, a otolaryngologist and aradiation oncologist, failed to inform Plaintiff’s decedent about other treatment options tocounter the risk of Decedent’s tongue cancer metastasizing. The trial court struck theotolaryngologist expert’s testimony on the grounds that he did not render his opinion to therequisite degree of medical certainty. A non-suit was entered against Plaintiff and Plaintiffappealed.On appeal, the Superior Court held that although this expert did not use the exact phrase“reasonable degree of medical certainty,” his opinion, in its totality, was expressed with asufficient degree of certainty and should have been admitted. The Court also addressed issuesregarding the qualifications of Plaintiff’s experts. See infra. Based on errors of the trial court onall these issues, the Superior Court reversed the order entering non-suit and remanded the casefor a new trial.The Supreme Court recently granted appeal of the above case as to whether respondent’smedical oncology expert was qualified to render standard of care opinions against anotolaryngologist and radiation oncologist under section 1303.512 of the MCARE Act. SeeVicari v. Spiegel, 972 A.2d 410 (Pa. 2009). The Supreme Court affirmed the Superior Court’sholding that the oncologist was qualified to testify as an expert witness against anotolaryngologist and a radiation oncologist. Vicari v. Spiegel, 989 A.2d 1277 (Pa. 2010)29