Wexler v. Hecht, 2004 PA Super 95 (Pa. Super 4/5/2004)

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2004 PA Super 95

BEVERLY WEXLER, Appellant v. PAUL J. HECHT, M.D. AND DONALD W. MAZURE, M.D., Appellees.

No. 175 EDA 2003.

Superior Court of Pennsylvania.

Filed: April 5, 2004.

Appeal from the Order dated December 18, 2002, in the Court of Common Pleas of Philadelphia County, Civil Division, at No(s). 477, November Term, 1999.

Before: JOHNSON, LALLY-GREEN, and POPOVICH, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 In this medical malpractice action, Appellant, Beverly Wexler, appeals from the summary judgment order entered on December 18, 2002. We affirm.

¶ 2 A brief summary of the factual and procedural history of the case is as follows. On January 18, 1998, Appellant underwent bunion-removal surgery and related procedures. Defendant/Appellee, Dr. Paul J. Hecht, performed the operation. Dr. Hecht is a board-certified orthopedic surgeon.

¶ 3 Appellant complained that Dr. Hecht's surgery caused her foot condition to worsen.¹ On November 3, 1999, Appellant filed a medical malpractice action against Dr. Hecht.

¶ 4 The case proceeded through discovery, including the production of expert reports. Appellant presented an expert report from Dr. Lawrence Lazar, D.P.M. (Doctor of Podiatric Medicine). Dr. Lazar is a podiatrist, and is licensed to practice in the District of Columbia, Maryland, and North Carolina. Dr. Lazar is not a licensed medical doctor, an M.D., or an orthopedic surgeon, but he is certified by the American Board of Podiatric Surgery.

¶ 5 Dr. Lazar's report explains how Dr. Hecht's treatment deviated from the "normal standard of care" in many respects. The report, however, does not further identify whether the "normal standard of care" is the standard of podiatric surgeons like himself, or orthopedic surgeons like Dr. Hecht. Similarly, Dr. Lazar references "the scientific literature" and un-named medical textbooks to support his conclusion that Dr. Hecht deviated from the "normal standard of care." Again, however, Dr. Lazar does not indicate whether these texts set forth the standards relating to podiatric surgeons or to orthopedic surgeons.

¶ 6 Dr. Hecht filed a motion in limine to exclude Dr. Lazar's expert report. Dr. Hecht argued that Dr. Lazar was unqualified to provide an expert opinion under both the common law and the newly enacted Medical Care Availability and Reduction of Error Act ("MCARE Act"), 40 P.S. § 1303.101 et seq.

¶ 7 The trial court held a hearing on December 17, 2002. The court concluded that Dr. Lazar lacked the sufficient background, training, and experience to render a competent expert opinion under the common law. The court expressly ruled that its decision was not based on the MCARE Act. N.T., 12/17/2002, at 22.

¶ 8 At the end of the hearing, the court granted Dr. Hecht's motion in limine. Because Appellant now lacked an expert to support her medical malpractice action, Dr. Hecht made an oral motion for summary judgment. The court granted this motion as well. The court docketed these orders on December 18, 2002. This timely appeal followed.²

¶ 9 Appellant raises three issues on appeal:

Did the trial court err and abuse its discretion in finding that the Appellant's medical expert, a Podiatrist, was not qualified to testify as an expert against an Orthopedist in a medical malpractice case where:

A. The specialties overlap in practice, the podiatrist knows, is aware and can testify as to the standard of care in the field of Orthopedics based on his own training and education, and the subsequent treating physician who did two repair surgeries on the Appellant is a Podiatrist?

B. Where under the MCARE Act § 1303.512(c)(1),(2),(3), the Appellant's Podiatrist Expert practices in a sub-specialty which has a substantially similar standard of care as the defendant orthopedist and is board-certified in a similar approved board as the defendant?

C. The trial court erred and abused its discretion by failing to permit Appellant's expert to testify regarding his qualifications at the Motion in Limine Hearing despite Appellant's urging and request to hear from the expert in person?

Appellant's Brief at 4.

¶ 10 First, Appellant argues that the trial court abused its discretion by excluding Dr. Lazar's opinion under common law. Our standard of review is as follows:

"Whether a witness has been properly qualified to give expert witness testimony is vested in the discretion of the trial court." West Philadelphia Therapy Center v. Erie Ins. Group, 2000 PA Super 94, 751 A.2d 1166, 1167 (Pa. Super. 2000) (citation omitted). It is well settled in Pennsylvania that the standard for qualification of an expert witness is a liberal one. Rauch v. Mike-Mayer, 2001 PA Super 270, 783 A.2d 815 (Pa. Super. 2001). When determining whether a witness is qualified as an expert the court is to examine whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. Miller v. Brass Rail Tavern, 541 Pa. 474, 664 A.2d 525 (1995).

George v. Ellis, 2003 PA Super 121, 820 A.2d 815, 817 (Pa. Super. 2003).

The determination of whether a witness is a qualified expert involves two inquiries:

When a witness is offered as an expert, the first question the trial court should ask is whether the subject on which the witness will express an opinion is `so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman.' . . . If the subject is of this sort, the next question the court should ask is whether the witness has `sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.'

McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 533 A.2d 436, 440 (Pa. Super. 1987), appeal denied, 520 Pa. 589, 551 A.2d 215 (Pa. 1988), and by Petition of Merck, Sharp & Dohme, 520 Pa. 589, 551 A.2d 216 (Pa. 1988) (quoting Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408, 415 (Pa. Super. 1984)).

Kovalev v. Sowell, 2003 PA Super 432, ¶ 7.

¶ 11 It is undisputed that expert testimony was necessary both to establish the standard of care for the surgical procedure at issue, and to establish that Dr. Hecht breached that standard of care. Toogood v. Rogal, 824 A.2d 1140, 1145 (Pa. 2003) (opinion announcing the judgment of the court), citing, Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997). It is also undisputed that the relevant standard of care is the standard applicable to orthopedic surgeons, because the procedure at issue was performed by an orthopedic surgeon. See, Yacoub v. Lehigh Valley Medical Assocs., Inc., 805 A.2d 579, 592 (Pa. Super. 2002). The question becomes whether Dr. Lazar was qualified to render an opinion as to the standard of care employed by orthopedic surgeons.

¶ 12 Generally, "[i]n the area of medicine, specialties sometimes overlap and a practitioner may be knowledgeable in more than one field. Different doctors will have different qualifications, some doctors being more qualified than others to testify about certain medical practices." B.K. v. Chambersburg Hospital, 2003 PA Super 386, ¶ 10, quoting, Bindschutz v. Phillips, 771 A.2d 807, 809 (Pa. Super. 2001). Where the expert is qualified to testify, the weight of that testimony is for the jury to determine. Id.

¶ 13 On the other hand, medical experts may be unqualified to testify about the standards of care applicable in certain other medical fields. In other words, "it may appear that the scope of the witness's experience and education may embrace the subject in question in a general way, but the subject may be so specialized that even so, the witness will not be qualified to testify." Dambacher v. Mallis, 485 A.2d 408, 419 (Pa. Super. 1984), appeal dismissed, 500 A.2d 428 (Pa. 1985); see also, Kovalev, 2003 PA Super 432, ¶ 10 (doctor with general medical training was unqualified to testify about his orthopedic injuries); Yacoub, 805 A.2d at 592 (plaintiff failed to demonstrate that neurosurgeon was qualified to render expert opinion about standard of care appropriate to internal medicine or special unit care nursing); Dierolf v. Slade, 581 A.2d 649, 651 (Pa. Super. 1990) (orthodontist lacked training and experience necessary to present expert testimony regarding oral surgery); McDaniel v. Merck, Sharpe, & Dohme, 533 A.2d 436, 441-442 (Pa. Super. 1987) (expert in anesthetic drugs lacked training and experience to testify about whether continued use of an antibiotic drug caused death).

¶ 14 Such is the case here. We recognize that Dr. Lazar is a podiatrist who is certified by the American Board of Podiatric Surgery. As such, he is undoubtedly an expert in the general field of foot surgery. On the other hand, the trial court found that Dr. Lazar lacked the training and experience necessary to opine about the standard of care relevant to an orthopedic surgeon performing the particular procedure at issue. Specifically, the court noted that Dr. Lazar does not have an M.D., and therefore has not specialized in the field of orthopedic surgery. Trial Court Opinion, 8/13/2003, at 9, 12-14. By statute, the field of podiatric medicine is distinct from the field of general medicine that produces an M.D. Id. at 14-15. The training for podiatry is limited to the foot, while the training for general medicine includes the body as a whole. Similarly, the training for orthopedic surgery involves consideration of the entire skeletal system, rather than just the foot. Id. at 16. The trial court concluded:

The scope of podiatry, in this case, did not rise to a legally competent comprehension of an orthopedic manner of pre-operatively thinking about and approaching the upcoming surgery or an orthopedic understanding of post-surgical care and treatment. Dr. Lazar provided no evidence that he was significantly familiar with an orthopedist's distinctive holistic modality of performing surgery or with an orthopedist's holistic post-surgical...