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Pathologist May Give Standard of Care Testimony Against Surgeon Under MCARE Act

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In an opinion issued on February 25, 2013, a three judge panel for the Superior Court affirmed a ruling by the Court of Common Pleas of Northampton County permitting a plaintiff’s pathology expert to opine on the standard of care relevant to a general surgeon in a case involving an alleged delay in the diagnosis of breast cancer. 

In the underlying case of Renna v. Schadt, M.D., et al., a forty six year old female filed suit against a surgeon, alleging that he deviated from the standard of care with regard to his treatment of two lesions which were found in her right breast.  According to the plaintiff, the surgeon was negligent by performing a fine needle aspiration biopsy, as opposed to a more advanced diagnostic technique of computed tomography guided core biopsy.  As a result of the surgeon’s conduct, the plaintiff claimed that she suffered an eleven month delay in the diagnosis of her breast cancer, which in turn necessitated more extensive treatment than would have been necessary had the diagnosis been made earlier. 

To support her claim, the plaintiff sought to introduce the expert testimony of a pathologist who unlike the defendant surgeon, did not possess a board certification in general surgery.  Following the close of discovery and the exchange of expert reports, the defendant moved for summary judgment, claiming that under the MCARE Act, the pathologist did not possess the necessary qualifications to provide testimony regarding the standard of care applicable to a board certified surgeon.  The trial court denied defendant’s motion and ultimately, the jury returned a verdict in favor of the plaintiff.  On appeal, the defendant argued the trial court abused its discretion in allowing the pathologist to opine on standard of care issues when he did not have the necessary qualifications under the MCARE Act.

On review of defendant’s appeal, the Superior Court took note of the requirement set forth in subsection 512(c) of the MCARE Act, stating that when a defendant physician is certified by an approved board, any expert opining on the standard of care applicable to that physician must be “certified by the same or a similar approved board.” 40 P.S. 1303.512(c).  However, the court also noted a “catch all” provision within the Act, which notwithstanding the language in subsection 512(c), would allow such testimony “if the court determines that the expert possesses sufficient training, experience, and knowledge . . . as a result of active involvement . . . in the applicable subspecialty or a related field of medicine . . . .”  40 P.S. 1303.512(e).  Thus, if the expert satisfied the criteria under subsection 512(e), the MCARE Act would allow a waiver of the board certification requirements set forth within subsection 512(c). 

While the plaintiff’s pathologist clearly did not possess the same board certification as the defendant surgeon, the plaintiff argued that the pathologist was still qualified to testify on the standard of care due to his experience “in a related field of medicine.”  Taking this argument into account, the court drew upon the case of Vicari v. Spiegel, 989 A.2d 1277, 1283-1284 (Pa. 2010), wherein the Supreme Court held that under MCARE Section 512(e), “the ‘relatedness’ of one field of medicine to another . . . [must] be assessed with regard to the specific care at issue.” Accordingly, such a determination would depend on “a supporting evidentiary record and questioning of the proffered expert during voir dire.”  Id. 

Under this rubric, the court noted that in Vicari, a plaintiff’s expert who specialized in oncology was allowed to testify regarding the standard of care applicable to a defendant otolaryngologist, when the specific care at issue did not involve surgery, but “whether the plaintiff should have been given the option of chemotherapy and a referral to a medical oncologist.”  Id.

Turning to the medical care at issue in Renna, the court acknowledged that the malpractice alleged by plaintiff did not involve criticism of the defendant’s surgical technique, but rather his selection of a certain method for diagnosing cancer, i.e. a specific kind of biopsy.  During the trial court’s voir dire, the court noted that the plaintiff’s pathologist had testified that in his practice, he was familiar with the biopsies at issue and was often present while they were being performed.  He also stated that he had vast experience with breast cancer and that through his practice, “pathology provides the diagnosis from the specimen the surgeon provides.”

In light of this evidence, the Superior Court concluded that there was support for the trial court’s determination that a board certified pathologist practiced in a specialty sufficiently related to that of a surgeon, at least in the context of certain biopsy procedures.  As a result, the court held that the pathologist could offer testimony regarding the standard of care applicable to such procedures, despite the fact they had been performed by a surgeon with a separate board certification.


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