2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

should have been done under the circumstances. Further, the trial court should have allowed thelater submitted supplemental reports because the governing court order (and a stipulation of theparties) required Plaintiffs to submit just “an” expert report, which they did timely, not tocomplete all discovery. The Court noted that Defendants had failed to take sufficient steps toenforce their requests for all expert names and reports and that the court had failed to takecontrol of scheduling the case from the beginning.In Campbell v. Attanasio, 862 A.2d 1282 (Pa. Super. Ct. 2004), appeal denied, 881 A.2d818 (Pa. 2005), Plaintiff sought treatment for chronic obstructive pulmonary disease andpneumonia. Id. at 1283. Plaintiff subsequently developed anxiety and was treated withsedatives, including Ativan. Id. at 1283-84. Plaintiff then complained of “mild respiratorydiscomfort.” Id. at 1284. In response to these symptoms, Defendant physician, a third yearresident in the department of internal medicine, prescribed intravenous Ativan. Id. IntravenousAtivan is “a sedative so powerful that the United States Food and Drug Association [sic] hasrestricted its use to: (1) treating individuals who suffer from recurrent seizures; and (2)anaesthetizing patients prior to surgery.” Id. Plaintiff developed acute respiratory distress andlater sued the physician and hospital.Defendants moved for summary judgment, arguing that Plaintiff’s expert psychiatrist wasnot qualified to testify about the standard of care under MCARE section 1303.512. Id. JudgeGlazer denied Defendants’ motions for summary judgment, and the case was subsequentlyassigned to Judge Moss for trial. Id. at 1284-85. Defendants submitted pretrial motions inlimine again arguing Plaintiffs’ expert was not qualified under MCARE. Id. at 1285. JudgeMoss granted Defendants’ motions and dismissed the case. Id.On appeal, the Superior Court addressed three issues: whether the trial court violated thecoordinate jurisdiction rule when it granted Defendants’ motions notwithstanding that the factshad not changed since a judge of the prior court denied the motions; whether a psychiatrist whotreats anxiety is qualified to offer an opinion on the standard of care regarding administration ofintravenous Ativan by a resident not trained in any specialty; and whether the court erred inholding that Plaintiff’s expert was not qualified to offer an opinion against Defendant hospitals.Id. at 1285. The court held that the coordinate jurisdiction rule had been violated when the trialcourt granted Defendants’ motions in limine. Moreover, the court explained that the earlierdenial of Defendants’ motions for summary judgment was not clearly erroneous; therefore, theviolation of the coordinate jurisdiction rule could not be excused. Id. at 1287. Additionally, thecourt agreed with Plaintiff, holding that Defendant had prescribed the Ativan for anxiety, notrespiratory problems, and that Plaintiff’s expert was qualified to testify regarding the applicablestandard of care because he had both received training in internal medicine and was familiar withthe standard of care for the administration of Ativan, which is regularly prescribed bypsychiatrists to treat anxiety. Id. at 1288-89.The Court further held that Defendant physician was a resident and could not be deemeda specialist in internal medicine or be held to the standard of care for such a specialist. Id. at1289. Accordingly, the court held that it was irrelevant that Plaintiff’s expert was not boardcertifiedin internal medicine because Defendant was not board-certified in internal medicine atthe time he treated Plaintiff. Id.37