2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

appropriate to such practices.” The Court further noted that there is no waiver provisionregarding the competency requirement of expert testimony of the standard of care. Therefore,the Court reasoned that the trial court was correct in finding Plaintiff’s podiatrist expertunqualified to testify under the MCARE Act.In Herbert v. Parkview Hospital, 854 A.2d 1285 (Pa. Super. Ct. 2004), Plaintiff claimedthat Defendants had been negligent in treating the decedent, who was an end-stage renal failurepatient who, two days after admission to the hospital, was found to have a large piece of steaklodged in his throat. Plaintiff entered into a joint tortfeasor release with the hospital and onephysician Defendant. At trial the jury found in favor of Plaintiff and apportioned liability to allDefendants. After trial, Plaintiff claimed that the names of the settling Defendants should nothave been on the verdict slip and argued that there was no basis for the jury to apportion liabilityto them because there was no expert testimony as to their liability. The non-settling Defendantargued that their inclusion on the verdict sheet was correct but challenged the qualifications ofPlaintiff’s expert. Plaintiff’s expert was an internist and the non-settling Defendant was anephrologist.The Superior Court concluded that there was sufficient evidence against the settlingDefendants to warrant submission of them to the jury for apportionment and to justify the jury’sapportionment of liability. The Court also found that while the MCARE Act plainly prefers, andin some cases may require, that expert testimony in professional medical malpractice cases comefrom witnesses with expertise in the Defendant’s particular subspecialty, the Act does not requirethat expert testimony in all cases be so restricted. In this case the allegation was that theDefendant nephrologist, during a nephrology consultation, had failed to notice symptomsindicating airway obstruction and respiratory distress. The Court held that the expert internistwas qualified to testify about the standard of care applicable to physician, such as the Defendantnephrologist, with internal medicine and critical care experience who encounters a patientmanifesting numerous signs of respiratory blockage and distress.In Gbur v. Golio, 932 A.2d 203 (Pa. Super. Ct. 2007), aff’d, 963 A.2d 443 (Pa. 2009), theSuperior Court held that Plaintiff’s expert, a radiation oncologist, was qualified to opine as to thestandard of care applicable to Defendant, a urologist, with regard to Defendant’s alleged failureto diagnose Plaintiff’s decedent’s prostate cancer, which ultimately metastasized to his mandibleand caused his death.Applying the MCARE expert qualification standard, the court held that, althoughPlaintiff’s expert was not a board-certified urologist, his extensive experience and boardcertifications in radiation oncology qualified him under Section 1303.512(d) (relating to careoutside specialty) to opine regarding Defendant’s alleged failure to timely diagnose Plaintiff’sdecedent’s prostate cancer despite elevated PSA tests and suspicious radiological studies. Insupport of its holding, the Superior Court noted that Plaintiff’s expert did not testify as to thesubstantive standard of care applicable to urologists as such, but rather to the standard of careapplicable in diagnosing prostate cancer, an area in which Plaintiff’s expert was clearly qualifiedto testify. The Court thus concluded that Plaintiff’s expert did, in fact, meet the standardrequired to testify to care outside his own particular specialty under Section 1303.512(d) of theMCARE Act.39