2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

for nonsuit. The Superior Court vacated the trial court’s order and remanded for reconsiderationof the expert’s qualifications.Dr. Weiner sought medical care from gastroenterologist Robert Fisher, M.D. between1990 and 1998 for various gastrointestinal symptoms. Although Dr. Fisher diagnosed Dr.Weiner with intestinal metaplasia, pernicious anemia and atrophic gastritis, he found no evidenceof malignancy. Approximately seven months after his last appointment with Dr. Fisher, Dr.Weiner was diagnosed with gastric cancer and underwent a total gastrectomy. Dr. Weiner wastreated for this malignancy until his death in February 2000. Mrs. Weiner, as executrix of herhusband’s estate, filed a complaint containing wrongful death and survival actions. In thecomplaint, plaintiff alleged that Defendant Dr. Fisher was negligent in failing to follow up on thedecedent’s gastrointestinal symptoms and in failing to diagnose a malignancy.The trial court ruled that Plaintiff’s expert was not qualified to testify under theprovisions of the MCARE Act and granted Defendant’s motion for a nonsuit. On appeal,Plaintiff contended that the trial court misconstrued the MCARE Act’s requirement that atestifying expert “be engaged in or retired within the previous five years from active clinicalpractice or teaching,” arguing that the five year period is measured from the time of the allegednegligence and not from the time of the trial. Further, Plaintiff asserted that the trial court erredin not qualifying Dr. Bisordi on the basis of his current teaching activities.The Superior Court rejected Plaintiff’s contention that the five year time period withinthe statute refers to five years prior to the date of the alleged malpractice and concluded that thetrial court was correct on this issue. The Superior Court held that the phrase “within the previousfive years” contained within section 512(b)(2) of the Act refers to a time period that is measuredfrom the time that the expert testifies. It is not measured from the time of the alleged negligence.The Superior Court, however, agreed with Plaintiff’s second contention that the trialcourt erred in not qualifying Dr. Bisordi as an expert on the basis of his teaching activities.Specifically, the trial court held that Dr. Bisordi was not qualified to testify as an expert becausealthough he “was actively teaching, he was not teaching in the specialized field of endoscopywhich is the specialty he was being offered to testify in.” The Superior Court held that accordingto the MCARE Act, in order for an expert to qualify to testify in a medical malpractice action, hemust “practice in the same subspecialty as the defendant physician or in a subspecialty which hasa substantially similar standard of care for the specific care at issue.” The Superior Court statedthat the relevant subspecialty in this case was gastroenterology. Both Dr. Bisordi and Dr. Fisherare gastroenterologists. Therefore, Dr. Bisordi satisfied the requirement of section 512(c)(2).The Superior Court ruled that the trial court erred in focusing its inquiry on Dr. Bisordi’steaching activities in the specialized field of endoscopy as endoscopy is not a subspecialty, butrather a diagnostic technique. The Superior Court concluded that the MCARE Act does notcontemplate disqualifying an expert based upon his failure to teach a specific diagnostictechnique. The Superior Court noted that the record was unclear as to whether Dr. Bisordiactively teaches in the area of gastroenterology or where he teaches. Further the record was notclear with respect to other factors such as the subject matter he teaches, the amount of time heteaches, or the academic level of his students. Therefore, the Superior Court remanded thismatter for reconsideration of Dr. Bisordi’s qualifications as a teacher of gastroenterology.35