The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) concluded in its non-precedential Memorandum decision filed on January 22, 2021 that the plaintiff’s subsequent treating neurosurgeon was qualified to provide a certificate of merit in her medical malpractice case, stating, “While Dr. Oppenheimer does not practice in the same subspecialties as the defendant physicians, i.e., general surgery and anesthesiology, the care at issue was the proper restraining of a patient during surgery, something with which Dr. Oppenheimer is experienced and knowledgeable.”
The plaintiff alleged in her Pennsylvania medical malpractice complaint that the negligent placement of leg restraints during gall bladder surgery performed by the defendant surgeon and defendant anesthesiologist resulted in nerve damage, causing pain and foot drop. The defendants argued that Dr. Oppenheimer could not be an appropriate licensed professional because he is a licensed neurosurgeon and the physician defendants include a general surgeon and anesthesiologist. The trial court found that Dr. Oppenheimer’s report was not a certificate of merit that satisfied Rule 1042.3.
To establish medical malpractice in Pennsylvania, a party must prove that a duty was owed and breached, and that the breach was the cause of harm resulting in damages. Also required are certificates of merit pursuant to Pa.R.C.P. 1042.1–1042.8, averring that there exists a reasonable probability that professional standards have been breached. Where the plaintiff is pro se, as in the present case, an appropriate licensed professional’s statement must be attached to the certificate of merit. Pa.R.C.P. 1042.3(e).
Pursuant to the Note to Rule 1042.3(a)(1), an appropriate licensed professional is someone who meets the qualifications for a testifying expert pursuant to Section 512 of the MCARE Act. Pa.R.C.P. 1042.3(a)(1), Note. Where such physician is licensed and practices in a different specialty than the medical defendants and is forming an opinion as to the standard of care, “A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in … a related field of medicine within the previous five-year time period.” 42 P.S. § 1303.512(e).
In his report, Dr. Oppenheimer stated, in part: “I am familiar with the standard of care in the issues of diagnosis and proper positioning in the operating room in respect to protecting nerves and other vital structures. I myself have in the past, and continue to, frequently assisted in the positioning of patients that I am operating on with respect to protecting vital structures. In addition, I am familiar with the standard of care for each healthcare provider in this case by virtue of my training, education and experience with this matter.”
The Pennsylvania Appellate Court held, “we conclude that the trial court abused its discretion when it found that Dr. Oppenheimer’s report does not meet the requirements of Rule 1042.3 and fails to establish a meritorious cause of action.”
Source Joyner v. Thomas Jefferson University Hospitals, Inc., No. 1347 EDA 2020.
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