In its opinion filed on March 30, 2016, the Superior Court of Pennsylvania (“Appellate Court”) reversed the trial court’s dismissal of a Pennsylvania medical malpractice case filed against a podiatrist, holding that the plaintiff’s orthopedic expert was qualified to testify against the defendant podiatrist. The Appellate Court held that Section 512 of the Medical Care Availability and Reduction of Error Act (“MCARE”), 40 P.S. § 1303.512, applies only to physician-defendants and that the defendant podiatrist is not a physician as that term is statutorily defined.
The plaintiff’s Pennsylvania medical malpractice lawsuit alleged that the defendant board-certified podiatric surgeon had improperly performed podiatric surgery on her that caused injuries. The plaintiff designated as her expert a board-certified orthopedic surgeon who had not performed surgery in over eight years.
The Trial Court’s Decision
The trial court stated that MCARE requires that an expert called to testify on standard of care issues be board certified by the same or similar board as the defendant, 40 P.S. §1303.512(c)(3), and that an expert called to testify that the standard of care had not been met must “…practice in the same subspecialty as the Defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue…”, 40 P.S. §1303.512(c)(2).
The trial court noted that the plaintiff’s orthopedic expert is not and never has been a board-certified podiatric surgeon. The trial court stated that it is clear that plaintiff’s expert is not in the same subspecialty as the defendant and thus the question was whether the expert’s subspecialty has a substantially similar standard of care for the care at issue, or whether the plaintiff’s expert falls within one of the exceptions.
The trial court determined that clinical orthopedics and podiatric surgery are different subspecialties; that the plaintiff’s expert is not certified by the same boards as the defendant; that the defendant’s care was not outside his specialty (an exception listed in 40 P.S. §1303.512(d)); that the plaintiff’s expert does not have sufficient training, experience and knowledge as a result of full-time teaching or active involvement in the field where the expert seeks to testify (an exception listed in 40 P.S. §1303.512(e)); and, that the plaintiff’s expert did not teach podiatry, does not perform podiatric surgery, and had not performed any surgery in over eight years (MCARE requires a five-year period in which the proffered expert must have practiced).
The trial court held that because the plaintiff’s medical expert is not board certified by the same or a similar board as the defendant and he does not fit within any of the exceptions in MCARE, his testimony is properly excluded and nonsuit is appropriately entered in favor of the defendant.
The Appellate Court Decision
The Appellate Court stated that the defendant, as a podiatrist, is not a physician as that term is statutorily defined (Section 512 of MCARE applies only to physician-defendants: “(a) GENERAL RULE.—No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.”). (emphasis added).
The Appellate Court held that although the plaintiff’s case is a professional liability claim necessitating a certificate of merit pursuant to Pa.R.C.P. 1042.3, the plaintiff is not required to meet the heightened standard for admission of expert medical testimony under Section 512 of MCARE. Rather, the common law standard would apply: that a witness is qualified to testify if he has any reasonable pretension to specialized knowledge on the subject under investigation.
The Appellate Court held that the plaintiff’s expert, as a board-certified orthopedic surgeon, would meet that standard, and the fact that the plaintiff’s expert has not performed surgery in eight years, or that he specializes in the spine rather than the foot, goes to the weight of his testimony, not its admissibility, and is for the jury to consider.
Source Price v. Catanzariti, 2016 PA Super 76.
If you or a loved one may have a medical malpractice claim against a podiatrist, you should promptly seek the legal advice of a local medical malpractice attorney in your U.S. state who may investigate your podiatric malpractice claim for you and represent you in a podiatrist malpractice case, if appropriate.
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