2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Defendant’s urology expert had a specialized knowledge of the subject matter in question. Forthese reasons, the Court held that a board-certified urologist was qualified under MCARE andcommon law standards to qualify to the standard of care involved in avoiding uretal injuryduring pelvic surgery and post-operative assessment.The Superior Court recently addressed the issue of expert qualification in Hyrcza v. WestPenn Allegheny Health System, Inc., 978 A.2d 961 (Pa. Super. Ct. 2009), appeal denied, Hyrczav. West Penn Allegheny Health System, Inc., 604 Pa. 707 (Pa. 2009). In Hyrcza, the executrixof a deceased patient’s estate brought a wrongful death and survival action against numerousmedical defendants after the patient died from massive gastrointestinal bleeding. On appeal,appellants argued that the trial court erred by permitting Plaintiff’s expert, a board certifiedpsychiatrist and neurologist, to testify as to the standard of care applicable to Defendantphysician, a board certified physiatrist. Appellants argued that because Plaintiff’s expert was notfamiliar with the applicable standard of care and did not practice in a specialty substantiallysimilar to that of physician Defendant, he was unqualified to render standard of care opinion asto Defendant physician under Section 1303.512 of the MCARE Act.Specifically, the trial court stated in its 1925(a) opinion that it was satisfied that the postoperativecare of the patient (a multiple sclerosis patient having undergone hip surgery) withaspirin and steroids was a matter within the expert’s training, regardless of specialty. Further,Plaintiff’s expert testified that his patients often undergo surgery and that he is involved in thepost-operative treatment and rehabilitation that includes administration of aspirin, and that hewas familiar with the risks involved in prescribing aspirin and steroids together. The SuperiorCourt accepted the trial court’s decision and affirmed its decision regarding Plaintiff’s expert.In Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. Ct. 2010), thePennsylvania Superior Court held that the trial court did not abuse its discretion byallowing a neurosurgeon to testify as an expert regarding a neurosurgical nurse’s standardof care. This case involved an action by the executors of the patient’s estate against ahospital for wrongful death, survival and professional negligence. In permitting theneurosurgeon to testify as an expert regarding the neurosurgical nurse’s standard of carein responding to a change in the patient’s pupil, which became fixed and dilated, the courtheld that neither the neurosurgeon’s “expertise nor his experience in working with nurseswas in any way deficient.” Furthermore, the court added that the record establishes thatthe neurosurgeon spent his entire career practicing in a hospital setting and interactingwith nurses daily. In such a situation, a “neurosurgeon whose orders provide dailydirection of the activities of the nurses who care for his patients is familiar with thestandard of care expected; if he were not, his ability to depend on their observations andjudgment would be sharply limited and his professional practice jeopardized as a result.”Id. at 930. Compare Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. Ct. 2010)(allowing neurosurgeon to testify as expert regarding neurosurgical nurse’s standard ofcare where neurosurgeon spent entire career practicing in hospital setting and interactingwith nurses daily), with Yacoub v. Lehigh Valley Medical Associates, P.C., 805 A.2d 579(Pa. Super. Ct. 2002), appeal denied, 825 A.2d 639 (Pa. 2003) (stating that Board certifiedneurosurgeon was not qualified, on basis of overlap or experience in internal medicine orspecial care unit nursing, to testify, in medical malpractice lawsuit, as to internists and41