Price v. Catanzariti

138 A.3d 8

2016 PA Super 76

Roulette PRICE, Appellant

v.Alan CATANZARITI, D.P.M., Appellee.

No. 1886 WDA 2014

Superior Court of Pennsylvania.

Argued Oct. 20, 2015.

Filed March 30, 2016.

Michael P. Petro, Pittsburgh, for appellant.

Daniel P. Carroll, Pittsburgh, for appellee.

BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.

OPINION BY FORD ELLIOTT, P.J.E.:

Roulette Price appeals from the judgment entered October 21, 2014, following the granting of a compulsory non-suit for the defendant/appellee, Alan Catanzariti, D.P.M., in this medical malpractice liability action.¹ The trial court granted compulsory non-suit and dismissed the case after finding that appellant's proposed expert witness, Mark Robert Foster, M.D., a board-certified orthopedic surgeon, did not meet the qualification requirements of the MCARE Act.² After careful review, we reverse.

The trial court has summarized the history of this case, as well as described its reasoning for excluding Dr. Foster's testimony, in its opinion filed on January 20, 2015, pursuant to Pa.R.A.P.1925(a), set forth here in its entirety:

Plaintiff has appealed from the judgment entered in favor of Defendant by the Court in this medical malpractice lawsuit. The court granted Defendant's Motion for Nonsuit following the exclusion of the testimony of Plaintiff's expert. Plaintiff challenges on appeal the Court's ruling excluding the testimony of her expert. We believe that Plaintiff's expert was not qualified to render an expert opinion on the facts and issues of this case.

Plaintiff's lawsuit alleged that Defendant improperly performed podiatric surgery, causing her certain injuries. Defendant is a board-certified podiatric surgeon. Plaintiff sought to present as an expert in this matter a board-certified orthopedic surgeon who had not performed surgery in over eight years. Plaintiff's expert, while an orthopedic surgeon, is not and never has been[ ] a board-certified podiatric surgeon.

The MCARE Act 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). An expert called to testify on the standard of care purportedly not 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). Whether a witness has been properly qualified as an expert is vested in the discretion of the trial court, Wexler v. Hecht, 847 A.2d 95, 98 (Pa.Super.2004).^[3] It is clear that Plaintiff's expert is not in the same subspecialty as Defendant. The question thus becomes whether the expert's subspecialty has a substantially similar standard of care for the care at issue, or whether Plaintiff's expert falls within one of the exceptions listed in the above section. We believe that Plaintiff cannot satisfy this requirement.

It is apparent that clinical orthopedics and podiatric surgery are different subspecialties. Plaintiff's expert is not certified by the same boards as Defendant. Defendant's care was not outside his specialty, thus making the exception listed in 40 P.S. § 1303.512(d) inapplicable. The second exception at § 1303.512(e) permits a court to waive the specialty and board certification requirements where the proffered expert has sufficient training, experience and knowledge as a result of full-time teaching or active involvement in the field where the expert seeks to testify—here podiatric surgery. It is clear Plaintiff cannot satisfy this exception. Plaintiff's expert did not teach podiatry, does not perform podiatric surgery and had not performed any surgery in over eight years. The MCARE statu[t]e has promulgated a five-year period in which the proffered expert must have practiced. See Weiner v. Fisher, 871 A.2d 1283, 1286–87 ([Pa.Super.]2005).

Plaintiff seeks to argue that her expert's specialty of an orthopedic surgeon is substantially similar to podiatric surgery to allow testimony. The Pennsylvania Superior Court in Wexler v. Hecht, 847 A.2d 95, 100 ( [Pa.Super.]2004), however, found that the standard of care for an orthopedic surgeon is substantially different from that of a podiatric surgeon. A podiatric surgeon was thus not permitted to offer expert testimony on the performance of an orthopedic surgeon. We see no reason why the converse should be permitted here.

Other Courts of Common Pleas have reached similar conclusions. See Kling v. Waciuma, 2012 WL 5362590 (Lycoming Co.2012), Carter v. Davila, (Mercer Co.2006, Reed, J.).

Plaintiff's expert has not performed surgery in over eight years and has apparently never performed the podiatric surgery at issue here.^[4] His practice at present is in clinical orthopedics. There is nothing to support a finding that his practice satisfies the requirements and standards promulgated in MCARE. He does not practice in the same subspecialty or one with a substantially similar standard of care for the type of surgery at issue in this case. He is not board certified by the same or a similar board as Defendant, and does not fit within any of the exceptions that the Act provides. Accordingly, his testimony was properly excluded and nonsuit was appropriately entered in favor of Defendant.

Trial court opinion, 1/20/15 at 1–3.

On June 3, 2014, the trial court granted appellee's motion to exclude the testimony of Dr. Foster. The trial court also granted appellee's motion for compulsory nonsuit and dismissed the case with prejudice. A timely motion for post-trial relief was filed on June 12, 2014, and denied on October 17, 2014. Judgment was entered on October 21, 2014, in favor of appellee and against appellant. A timely notice of appeal was filed on November 14, 2014. Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b), and the trial court filed an opinion.

Appellant has raised the following issue for this court's review:

1. Whether the Lower Court committed an error of law in excluding the testimony of Plaintiff's medical expert witness under the MCARE Act?

Appellant's brief at 4.

Interpretation of the MCARE statute presents a question of law. Wexler v. Hecht, 593 Pa. 118, 928 A.2d 973, 977 (2007). Thus, our standard of review is de novo and our scope of review is plenary. Anderson v. McAfoos, 618 Pa. 478, 57 A.3d 1141 (2012) ; Gbur v. Golio, 600 Pa. 57, 963 A.2d 443 (2009) ; Hyrcza v. West Penn Allegheny Health Sys., Inc., 978 A.2d 961, 972 (Pa.Super.2009), appeal denied, 604 Pa. 706, 707, 987 A.2d 161 (2009).

The MCARE Act, Section 512, “Expert qualifications,” provides:

(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.

Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.

(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).

(d) CARE OUTSIDE SPECIALTY.—A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:

(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and

(2) the defendant physician provided care for that condition and such care was not within the physician's specialty or competence.

(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 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 (emphasis added). On its face, Section 512 applies only to physician-defendants . Appellee, as a podiatrist, is not a physician as that term is statutorily defined. See Wexler, 847 A.2d at 103.⁵ Appellee concedes as much in his brief. (Appellee's brief at 11–12 (distinguishing between medical doctors and podiatrists).) As such, although this is a professional liability claim necessitating a certificate of merit pursuant to Pa.R.C.P. 1042.3, appellant is not required to meet the heightened standard for admission of expert medical testimony under Section 512 of the MCARE Act. Rather,...