Vicari v. Spiegel
Vicari v. Spiegel
Concurring Opinion
concurring.
I join the Majority Opinion. I write simply to address the waiver question Mr. Justice Saylor notes and to explain why I think it is appropriate to reach the merits here; and I also write to make two points of elaboration concerning the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. §§ 1303.101-1303.1115.
As Justice Saylor correctly observes in his Concurring Opinion, until appellee rested his case, appellants never once objected to Dr. Blum’s qualifications to give testimony on the applicable standard of care. Appellants did not move in limine to preclude Dr. Blum’s testimony on the basis of the same board/subspecialty requirements of the MCARE Act, despite the fact that it was clear from Dr. Blum’s cumculwm vitae — forwarded months before trial — that he was a medical oncologist, and not a radiation oncologist, surgeon or otolaryngologist.
Similarly, during voir dire on his expert qualifications, appellants made no objection to appellee’s offer of Dr. Blum as an expert witness on the standard of care, despite appellants’ confirmation through cross-examination that he was not an otolaryngologist, a head and neck surgeon or a radiation oncologist. If appellants had objected at this early stage in the proceedings, the trial court would have had an opportunity to rule on the issue and appellee would have had the opportunity to attempt to cure any perceived defect under the MCARE Act construct. Instead, appellants waited until ap
Competing waiver arguments have been forwarded here: i.e., appellee argues that appellants objected too late to Dr. Blum’s qualifications, and appellants argue that appellee himself waited too late, until post-trial motions, to object that their successful argument in securing a nonsuit was untimely. The parties’ respective arguments on waiver were presented to the Superior Court, but the panel’s disposition of those arguments was quite perplexing. I set it forth in its entirety here:
We acknowledge Plaintiffs argument that the defendants waived any objection to Dr. Blum’s qualifications because they did not lodge an objection until the day after his testimony, during the argument on their motion for nonsuit. Indeed, any objections to Dr. Blum’s qualifications could have been raised, at the earliest, in a pretrial motion in limine following receipt of his curriculum vitae and expert report or, at the very least, following voir dire on his qualifications. On the other hand, the defendants argue that Plaintiff waived his waiver argument because he failed to raise it during argument on the motion for nonsuit. Although we do not condone the defendants’ untimely objection to Dr. Blum’s qualifications and find Plaintiffs waiver argument persuasive, because we have determined that Dr. Blum was indeed qualified to render his opinion, we decline to engage in an analysis of the parties’ competing waiver arguments.
Vicari v. Spiegel, 936 A.2d 503, 512 n. 10 (Pa.Super. 2007) (emphases added). The panel, in contradictory fashion, purported both to find that appellants’ objection to Dr. Blum’s qualifications was untimely and not to pass upon that very waiver. Failure to pass upon the argument would be error,
For purposes of our review here, I am satisfied that the Superior Court’s unclear waiver disposition, and the parties’ renewal of their respective arguments on waiver in this Court, should be of no moment. In petitioning this Court for discretionary review, appellants did not pursue their waiver argument, nor did they argue that the Superior Court erred in its confused disposition of the argument, and we granted review limited to appellants’ substantive MCARE Act claim.
The necessity to consider appellee’s waiver argument is a closer question. Arguably, as the party prevailing below, appellee is free to raise properly preserved alternative arguments, and the Court is then free to determine which arguments to discuss (or to determine to dismiss the appeal on prudential grounds). See generally, Thomas G. Saylor, Right for Any Reason: An Unsettled DoctHne at the Supreme Court Level and an Anecdotal Experience ivith Former Chief Justice Cappy, 47 Duq.L.Rev. 489, 490, 494 (2009) (discussing countervailing arguments regarding Pennsylvania Supreme Court’s authority to “sustain a valid judgment or order of a trial or lower appellate court for any valid reason appearing as of record,” in order “to effectuate substantial justice”). See also Commonwealth v. Edwards, 588 Pa. 151, 903 A.2d 1139, 1157-59 (2006) (on direct appeal, affirming trial court’s admission of evidence on alternative grounds not “proffered by the Commonwealth or the trial court”); Commonwealth v. Sholcosky, 553 Pa. 466, 719 A.2d 1039, 1047 (1998) (Saylor, J., dissenting) (dissenting from plurality decision in part because “an appellate court may sustain a correct judgment based upon any valid reason that is supported by the record”). But
In these circumstances, I believe the Majority’s decision to decline to reach either waiver argument is sound. We need not reach appellants’ waiver argument because it simply is not encompassed in our grant of review.
On the merits, I offer the following two observations. First, as the Majority states, appellee’s evidence amply established that as a medical oncologist Dr. Blum was qualified under Section 512(e) of the MCARE Act to render an opinion on the standard of care applicable to cancer treatment in the decedent’s case. The MCARE Act obviously was designed to raise the bar for expert witness qualification in medical negligence cases. But the Act should not supplant common sense or the dictates of justice. Indeed, in my view, the Act cannot simply displace the trial court’s evidentiary gate-keeping role such that traditional jurisprudential rules regarding the admissibility of expert witness testimony, deriving from bedrock precepts involving relevance and the overall truth-determining process, no longer apply. See, e.g., Pa.R.E. 702 (witness qualified as expert by knowledge, skill, experience, training or education may testify in form of opinion); Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525, 528 (1995) (test to be applied when qualifying witness to testify as expert is whether witness has any reasonable pretension to specialized knowledge on subject under investigation).
Second, although the parties and the Majority do not focus upon the issue, this case reveals the pitfalls when the Legislature purports to dictate how the courts should determine evidentiary questions, which implicates trial concerns uniquely within the judicial realm. Section 512(e) states that the trial court “may” waive the MCARE Act’s same specialty and board certification requirements if the court determines that the expert qualifies under the multiple parameters the provision then lists. The statute does not say the court “must” admit such testimony, only that it “may.” The question then becomes by what standard should that power be exercised? The Majority here does not remand for the trial court to exercise the power so conferred; instead, we hold, as a matter
. Even if the waiver argument were deemed available to appellants, I would find it lacks merit. Appellants claim that appellee waited too long — until post-trial motions — to argue that appellants waived their challenge to Dr. Blum's qualifications. Ordinarily, if trial error is not raised by a litigant until post-trial filings, the claim is waived. See Pa.RX.P. No. 227.1(b)(1) (post-trial relief may not be granted unless "grounds therefor, ... if then available, were raised in pre-trial proceedings, or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof, or other appropriate method at trial”). And so, appellee’s argument on post-trial motions was untimely if it appears that appellee could, and should, have objected at trial that appellants’ challenge to Dr. Blum’s qualifications under the MCARE Act, raised at the nonsuit stage, was untimely. But I would hold that appellee was not obliged to raise this claim earlier. I believe that the belated timing of appellants’ objection must be considered in assessing appellee’s issue preservation obligations at the nonsuit stage. Obviously, the appropriate response to appellants’ motion for nonsuit would have been an immediate, contemporaneous argument before the trial court that appellants lost their chance to object to Dr. Blum's qualifications when they failed to object during voir dire or during Dr. Blum’s testimony (if not earlier during motions in limine). But, I would not require such foresight by a party under circumstances like those present here. As noted, appellants obviously could and should have raised the expert qualification-based challenge that, once accepted by the trial court, eviscerated appellee’s entire case, during voir dire of appellee's expert — but they did not, which suggests that the timing here was not just belated, but strategic. The modern view of law does not favor trial by surprise or ambush; and finding a waiver here by appellee would invite, if not reward, such tactics. At a minimum, a party that would seek to prevail based upon such a tactic should make certain that its own position has been properly preserved; and appellants have not done that here. In my judgment, in these circumstances, appellee's post-trial motion may properly be viewed as the first appropriate opportunity after he was actually aggrieved where he was obliged to preserve his argument about appellants’ late MCARE Act-based objection and resulting waiver.
Concurring Opinion
concurring.
I would find any MCARE-based objection waived for failure to raise it in a timely manner.
In this regard, this Court has explained that the primary purpose of the requirement of a timely and specific objection is to ensure that the trial court has the opportunity to correct alleged trial errors. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 260, 322 A.2d 114, 117 (1974). Other courts have also stressed that a timely and specific objection also affords an opposing party the opportunity to address the objection and, where appropriate, to cure a defect. See generally 75 Am.Jur.2d Trial § 312 (2008) (collecting cases).
Gbur v. Golio, 600 Pa. 57, 76 n. 12, 963 A.2d 443, 455 n. 12 (2009) (Opinion Announcing the Judgment of the Court). Here, it was not until Dr. Blum had completed his testimony and the plaintiffs record was closed that Appellants decided to place the court on notice that they viewed him as unqualified to render an expert opinion concerning whether they had breached the appropriate standard of care. By this time, it was too late for Appellee to cure any alleged deficiency in the witness’s qualifications.
As for the merits, I agree with the majority to the degree it expressly adopts the principles set forth in the Opinion Announcing the Judgment of the Court in Gbur. See Majority Opinion, at 390, 989 A.2d at 1283 (quoting Gbur, 600 Pa. at 83-84, 963 A.2d at 459). These precepts were intended to convey that the focus of subsection (e) is centered upon the relatedness of the fields of medicine as such, rather than the specific care at issue. In the next paragraph, however, the majority articulates a further holding that appears to be in some tension -with Gbur. The majority indicates that the “relatedness” inquiry implicates “the specific care at issue” only. This seems difficult to reconcile with the pronouncements of the prior paragraph to the effect that the fields of medicine must be so closely intertwined that by their very nature they will
. The facts in the present case are arguably even more compelling than in Gbur. After Appellee offered Dr. Blum as an expert witness and examined him on voir dire concerning his qualifications, Appellants cross-examined him on voir dire regarding his background and qualifications, particularly as they related to the professional activities of Drs.
Opinion of the Court
OPINION
The issue before the Court in this case concerns the qualifications an expert witness must possess in order to testify regarding the standard of care in a medical professional liability case against a physician, pursuant to the Medical Care Availability and Reduction of Error (“MCARE”) Act.
Joseph Vicari (“Appellee”) brought a medical professional liability claim against Joseph R. Spiegel, M.D.; Pramila Rani Anne, M.D.; and Jefferson Radiation Oncology Associates (collectively “Appellants”) after Appellee’s wife, Barbara Vicari, died from metastatic tongue cancer on April 1, 2002, at 39 years of age.
At a jury trial presided over by the Honorable Esther R. Sylvester, Appellee presented testimony from two expert witnesses: Ronald H. Blum, M.D., a medical oncologist, and Peter Berman, M.D., an otolaryngologist. Appellee also presented excerpts from Dr. Spiegel’s deposition testimony, as well as testimony by Appellee himself and the Vicaris’ two children. Appellee then rested his case just prior to the lunch recess on May 2, 2006.
Immediately after the recess, Appellee’s counsel made an oral motion to reopen his case because he was unsure whether Dr. Berman had used the words “to a reasonable degree of medical certainty” during his expert opinion testimony. Notes of Testimony (“N.T.”), 5/2/06, at 101-02. Appellants’ counsel objected to Appellee’s motion to reopen, and following argument, the court denied Appellee’s motion and struck Dr. Berman’s testimony. Id. at 111, 121.
Counsel for Dr. Spiegel then made an oral motion for compulsory nonsuit, arguing that Dr. Blum was not competent to testify against Dr. Spiegel or Dr. Anne as to the applicable standard of care, because Dr. Blum was not board certified in the same field as either of the defendant physicians.
Appellee appealed to the Superior Court, arguing that the trial court had abused its discretion both by striking Dr. Berman’s testimony because it was allegedly not rendered to the requisite degree of medical certainty, as well as by striking Dr. Blum’s testimony because, under the MOARE Act, he allegedly did not qualify as an expert witness as to standard of care. Vicari v. Spiegel, 936 A.2d 503, 508-09 (Pa.Super. 2007).
Appellants then sought allowance for appeal from this Court, challenging the propriety of the Superior Court’s holding that the trial court had committed error when it had found Dr. Blum unqualified to testify against them.
Whether [Appellee’s] medical oncology expert [Dr. Blum] was qualified to render standard of care opinions against an otolaryngologist and radiation oncologist under Section 512 of the Medical Care Availability and Reduction of Error Act. 40 P.S. § 1303.512.
Vicari v. Spiegel, 601 Pa. 375, 973 A.2d 408-09 (2009).
With passage of the MCARE Act, the General Assembly created a more stringent standard for admissibility of medical expert testimony in a medical malpractice action by the imposition of specific additional requirements not present in the common law standard. Gbur v. Golio, 600 Pa. 57, 963 A.2d 443, 452 (2009) (Opinion Announcing the Judgment of the Court); id. at 464 (Greenspan, J., concurring) (agreeing that, with the MCARE Act, the General Assembly raised the standards for an expert witness testifying to a physician’s standard of care, but also noting that the statute permitted waiver of certain requirements under appropriate circumstances); Wexler v. Hecht, 593 Pa. 118, 928 A.2d 973, 986 (2007) (Castille, J., dissenting). The MCARE Act’s provisions as to the requisite qualifications for an expert witness testifying in a medical malpractice action against a physician are
(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.
(b) Medical testimony. — An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications:
(1) Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia.
(2) Be engaged in or retired within the previous five years from active clinical practice or teaching.
(c) Standard of care. — In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:
(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.
(2) 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, except as provided in subsection (d) or (e).
(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).
(e) Otherwise adequate training, experience and knowledge. — 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*388 possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.
40 P.S. § 1303.512.
Thus, pursuant to Section 512, to testify on a medical matter in a medical malpractice action against a defendant physician, an expert witness must be a licensed and active, or a recently retired, physician. In addition, in order to render an opinion as to the applicable standard of care, the expert witness must be substantially familiar with the standard of care for the specific care in question. Furthermore, the expert witness must practice in the same subspecialty as the defendant physician, or in a subspecialty with a substantially similar standard of care for the specific care at issue (“same specialty requirement”). Finally, if the defendant physician is board certified, the expert witness must be board certified by the same or a similar board (“same board certification requirement”). Importantly, the expert witness must meet all of these statutory requirements in order to be competent to testify. However, there is an exception to the same specialty and same board-certification requirements: if a court finds that an expert witness has sufficient training, experience, and knowledge to testify as to the applicable standard of care, as a result of active involvement in the defendant physician’s subspecialty or in a related field of medicine, then the court may waive the same specialty and same board certification requirements.
This Court has directly addressed the requirements of Section 512 only infrequently. In Wexler, supra, we held that a podiatrist was not competent to testify as an expert witness in a medical malpractice action against an orthopedic surgeon because a podiatrist does not possess an unrestricted physician’s license, as required under subsection 512(b)(1). Wexler, supra at 974, 981-82.
The trial court here appears to have based its ruling that Dr. Blum was incompetent to testify as to standard of care against Drs. Spiegel and Anne on the misconception that the MCARE Act mandates that, if the defendant physician is board certified, then the testifying expert must be board certified by the same board. There was no dispute that Dr. Blum, Dr. Spiegel, and Dr. Anne were all board certified by different boards. See infra. There is also no dispute that certification by the same or a similar board is the general rule promulgated in subsection 512(c)(3); however, the final phrase of this subsection provides for an exception, set forth in subsection 512(e), which the trial court did not appear to recognize. Under the exception, a court may waive the same board certification and same specialty requirements if the court determines that the expert possesses “sufficient training, experience and knowledge” to testify as to standard of care “as a result of active involvement in ... medicine in the applicable subspecialty or a related field of medicine.” 40 P.S. § 1303.512(e).
The exception set forth in subsection 512(e) provides that the court may waive same board and same specialty requirements if the proposed expert has sufficient training, experience, and knowledge to testify as a result of active involvement in a field of medicine “related” to the subspecialty of the defendant physician. The statute does not define the term “related field of medicine.” However, in the Opinion Announcing the Judgment of the Court in Gbur, Justice Saylor did consider, albeit in dicta, the meaning of this phrase in the context of subsection 512(e), and suggested that it “must mean more than fields of medicine which are ‘related’ in the most generic sense of the word, since Section 512(e) serves as a component of reform legislation designed to meaningfully enhance the standards governing the admissibility of expert testimony in medical professional liability cases.” Gbur, su
In addition, we further explicitly hold that the “relatedness” of one field of medicine to another for purposes of subsection 512(e) cannot be established in a broad and general sense that will henceforth be applicable to all situations and all claims. Rather, the “relatedness” of one field of medicine to another, under subsection 512(e), can only be assessed with regard to the specific care at issue. Two fields of medicine may be “related” with respect to certain specific issues of care, but unrelated with respect to other specific issues of care. Determining whether one field of medicine is “related” to another with respect to a specific issue of care is likely to require a supporting evidentiary record and questioning of the proffered expert during voir dire. This interpretation of “related field of medicine” is most compatible with the text of subsection 512(e) as a whole, which sets forth an exception to the formal same specialty and same board certification rules for experts otherwise qualified to testify.
This relatedness ultimately springs from the complexities and realities of modern cancer therapy, during which an individual cancer patient often obtains different treatments under the auspices of several different specialties of medical practice, and different specialists often treat the patient in a sequential but coordinated manner. Given the complex and multi-disciplinary nature of many treatment regimens, consensus decisions as to the care of individual cancer patients are often reached by a multi-disciplinary panel of physicians known as a “tumor board,” the composition and activities of which were explored at trial. As Dr. Blum’s undisputed testimony made clear, patients in accredited cancer centers are routinely reviewed by a “tumor board,” which consists of physicians from a variety of specialties and subspecialties, including medicine, surgery, diagnostic radiology, radiation oncology, and pathology. N.T., 5/1/06, at 68, 103. Dr. Blum explained that, at the tumor board conference, “there’s a full discussion of the various factors that go into decision making” and “then decisions are made” concerning the cancer patient. Id. at 68. Dr. Spiegel, in his deposition testimony read in part at trial, stated that he had presented Mrs. Vicari’s case to the “head and neck tumor board, which is a joint discussion of
The conclusion that Dr. Blum, as a practicing medical oncologist, was actively involved in a related field of medicine to that of Drs. Spiegel and Anne does not, of course, end the inquiry required in subsection 512(e). The question remains whether Dr. Blum, because of his active involvement in medical oncology, had sufficient training, experience, and knowledge to testify as to the specific standard of care at issue. We conclude that he unquestionably meets this statutory standard.
As a medical oncologist, Dr. Blum had maintained a clinical practice for thirty years, encompassing the administration of chemotherapy to cancer patients, including head and neck cancer patients. N.T., voir dire, 5/1/06, at 61-62. During the same period of time, Dr. Blum served on, and sometimes chaired, tumor boards, in which capacity he was part of the multidisciplinary panel that reviewed and discussed individual patients to reach consensus decisions as to which treatment or combination of treatments should be recommended.
In sum, we hold that, under subsection 512(e), Dr. Blum had sufficient training, experience, and knowledge to testify as to standard of care for the narrow, specific issue of care presented, due to his active involvement in a field of medicine related to that of the defendant physicians.
Order of the Superior Court affirmed and case remanded for a new trial. Jurisdiction relinquished.
. Act of March 20, 2002, P.L. 154, No. 13, 40 P.S. §§ 1303.101-1303.1115.
. The original complaint, filed December 13, 2002, also named numerous other defendants, each of whom either was dismissed from the suit or settled with Appellee. None of the other originally-named defendants is involved in this appeal.
. More specifically, the pathology report indicated that the anterior margin of Mrs. Vicari’s tumor was "positive for carcinoma at [the] cauterized base," that there was perineural invasion, and that, in one out of the thirty-four lymph nodes examined, there was a two millimeter focus of metastatic squamous cell carcinoma. Surgical Pathology Report, dated 3/6/01, at 2, 3.
. As additional grounds for their motion for nonsuit, Appellants also contended that Appellee had not established causation. Notes of Testimony ("N.T."), 5/2/06, at 118. This issue was not addressed by the trial court and is not before us on appeal.
. At trial, the court did not explicitly state its reasons for finding Dr. Blum not competent to testify against Dr. Spiegel or Dr. Anne; furthermore, in its published opinion, the trial court did not address at all the issue of Dr. Blum's competence to testify, apparently because it did not deem the issue “worthy of comment.” See Vicari v. Spiegel, 1 Pa. D. & C. 5th 1, 2 (Phila.Ct.Com.Pl. 2007). Based on the context of the trial court’s statements at trial, we agree with the Superior Court that the trial court accepted defense counsel's argument that the MCARE Act required Dr. Blum to be board certified by the same board(s) as the defendant physicians in order to testify against them as to standard of care. See Vicari, 936 A.2d at 513-14 n. 11 (Pa.Super. 2007) (citing N.T., 5/2/06, at 112, 131).
. In addition, Appellee argued before the Superior Court that the trial court had abused its discretion by denying his motion to reopen his case to permit Dr. Berman to state that his opinions were, indeed, held to a reasonable degree of medical certainty. Vicari, 936 A.2d at 508-09. After concluding, contrary to the trial court’s finding, that Dr. Berman’s opinion was expressed with the requisite degree of reasonable certainty, the Superior Court declined to address whether the trial court had abused its discretion by denying Appellee’s motion to reopen. Id. at 512 n. 9.
Finally, Appellee argued that the trial court had abused its discretion by failing to find the deposition testimony of Dr. Spiegel sufficient to avoid an entry of nonsuit, particularly when combined with Dr. Blum’s testimony as to causation. Id. at 509, 515. The Superior Court determined that it was unnecessary to address this issue because it had already concluded that the trial court had erred by striking the testimony of Appellee's expert witnesses and by granting the nonsuit. Id. at 515.
. In Appellants' Petitions for Allowance of Appeal, they did not challenge the Superior Court’s ruling concerning the requisite medical certainty of Dr. Berman's opinion testimony.
. The Superior Court has addressed the qualifications required of a medical expert to testify as to standard of care, pursuant to Section 512, on several occasions. In Jacobs v. Chatwani, 922 A.2d 950, 959 (Pa.Super. 2007), the Superior Court held that “a board certified urologist, who performs pelvic surgery, was qualified under the MCARE Act to opine on the standard of care related to protection of the ureters during pelvic surgery [specifically, a hysterectomy] and to opine on diagnostic testing of urologic structures following pelvic surgery” in a medical malpractice suit against an obstelrician/gynecologist. In Smith v. Paoli Memorial Hospital, 885 A.2d 1012, 1018-19 (Pa.Super. 2005), the Superior Court held that a board certified general surgeon and a board certified internist-medical oncologist were competent to testify against board certified gastroenterologists concerning the specific care at issue, which was the diagnosis of a patient with obscure gastrointestinal bleeding. The court concluded that the experts practiced in subspecialties with a substantially similar standard of care to that of the defendant gastroenterologists for the specific care at issue. Id. at 1022. The court also concluded that the experts possessed sufficient training, experience, and knowledge to testify as a result of their active involvement in a field of medicine related to that of the defendant physicians. Id. In Herbert v. Parkview Hospital, 854 A.2d 1285 (Pa.Super. 2004), the Superior Court concluded that an expert who was board certified in internal medicine with subspecialties in pulmonary diseases and critical care medicine could testify against a physician who was board certified in internal medicine with a subspecialty in nephrology, when the specific care at issue was a failure to provide care for an allegedly obvious respiratory problem. In Gartland v. Rosenthal, 850 A.2d 671
. In Miville v. Abington Memorial Hospital, 415 F.Supp.2d 500 (E.D.Pa. 2005), the federal district court was called upon to predict how this Court would interpret subsection 512(e), particularly with respect to its use of the phrase ‘‘related field of medicine.” Contrary to our holding here, the district court concluded that the relatedness of two fields of medicine, and hence the eligibility for a subsection 512(e) waiver, was not dependent on the specific care at issue. Id. We note that the federal court provided no guidance as to what criteria it would use in determining whether two fields of medicine were "related;” it simply concluded that the specific care at issue was not relevant. We are, of course, not bound by decisions of the lower federal courts, especially where the question is one of Pennsylvania law. See Stilp v. Commonwealth, 588 Pa. 539, 905 A.2d 918, 977 n. 44 (2006). Miville’s analysis
. Dr. Spiegel did not testify further as to the deliberations or recommendations of the head and neck tumor board with regard to Mrs. Vicari's case.
. Out of an abundance of caution, we hasten to clarify here that we are not suggesting that service on a tumor board is determinative in establishing that a proffered expert is competent to testily, under subsection 512(e), against any other physician who also treats cancer patients. That is clearly not the case. However, a proffered expert's service on a tumor board may constitute one relevant and significant factor in a court's determination as to whether the expert has “suffi
Similarly, the fact that two physicians in two subspecialties treat patients with the same condition does not establish that one is competent to testify against the other under subsection 512(e). The court must consider the entirety of the proposed expert’s training, experience, and knowledge in order to determine if the proposed witness’s expertise extends to the relevant standard of care in the defendant physician's field.
Reference
- Full Case Name
- Joseph VICARI as Administrator of the Estate of Barbara Vicari, Deceased v. Joseph R. SPIEGEL, M.D., Pramila Rani Anne, M.D. and Jefferson Radiation Oncology Associates. Appeal of Joseph R. Spiegel, M.D.; Joseph Vicari as Administrator of the Estate of Barbara Vicari, Deceased v. Joseph R. Spiegel, M.D., Pramila Rani Anne, M.D. and Jefferson Radiation Oncology Associates. Appeal of Pramila Rani Anne, M.D. and Jefferson Radiation Oncology Associates
- Cited By
- 27 cases
- Status
- Published