2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

failing to timely diagnose and treat the decedent’s small bowel leiomyosarcoma, therebyresulting in her untimely death. Specifically, the decedent presented to Dr. Battafarano’s officein May 1998 with rectal bleeding.In support of his claim, Plaintiff experts retained W. Stuart Battle, M.D., a board-certifiedgeneral surgeon, and Allen Krutchik, M.D., a board-certified oncologist and internist, to addressthe standard of care for determining the cause of occult gastrointestinal bleeding. Specifically,the experts were retained to address whether gastroenterologists, Drs. Tolin and Astroff,breached the standard of care by failing to order a CT scan to investigate the possibility of asource extrinsic to the GI tract.Ten days prior to trial, Defendants filed motions in limine seeking to preclude Plaintiff’sexperts from testifying based upon their purported lack of qualification pursuant to the MCAREAct. Although Plaintiff agreed that the experts did not possess expertise in the subspecialty ofgastroenterology, Plaintiff asserted that their specialties and/or subspecialties overlap with that ofgastroenterology as to the standard of care applicable when a patient presents to anyappropriately trained medical care provider with an obscure GI bleed. The trial court deniedDefendants’ motion and concluded that both Drs. Battle and Krutchik met the requirements ofthe MCARE Act. Specifically, the court stated that Dr. Battle was board-certified in surgery,which overlaps with gastroenterology for the specific care at issue in this case and Dr. Krutchikwas board-certified in medical oncology which is a subspecialty of internal medicine, which hasa substantially similar standard of care as gastroenterology for the specific care at issue in thiscase.Defendants appealed the trial court determination. The Superior Court upheld the trialcourt’s order denying Defendants’ motion in limine. The court concluded that the MCARE Actrequires that experts be familiar with the standard of care for the specific care at issue andpractice in the same or a substantially similar subspecialty which has a substantially similarstandard of care for the specific care at issue. 40 Pa. Cons. Stat. § 1303.512(c)(1). Althoughgastroenterology is not a subspecialty of oncology or general surgery, the court concluded that itis a subspecialty of internal medicine, in which Dr. Krutchik was board-certified. Further, Dr.Krutchik testified that he saw “all kinds of patients,” including patients with variousgastrointestinal cancers, including soft tissue sarcoma. Additionally, Dr. Krutchik instructedmedical students in the examination, diagnosis and management of patients with various cancers.He published papers on all types of sarcoma, including soft tissue sarcoma and small bowelsarcoma. Dr. Krutchik testified that there is an overlap in the standard of care among physiciansspecializing in different areas, i.e. internist, gastroenterologist, oncologist who are all involved inthe treatment of cancer and non-cancer related problems.Further, the court concluded that Dr. Battle is a general surgeon with specialization ingastrointestinal surgery. He testified that over the past thirty-three years he has diagnosed andtreated cancers of the intra-abdominal organs, specifically the gastrointestinal tract, the thyroidand skin cancers such as melanoma and smaller cancers of the skin. Dr. Battle was a member ofthe American Society of Gastrointestinal Endoscopy and had been one for over thirty years at thetime of trial. Dr. Battle was familiar with the standard of care for the evaluation and work-up ofa sixty year old woman with GI bleeding. Dr. Battle testified that the standard of care for a33