Vicari v. Spiegel, Nos. 17 and 18 EAP 2009, decided March 25, 2010, By Justice McCaffery

Pennsylvania Supreme Court holds medical oncologist may offer standard of care testimony against otolaryngologist and radiation oncologist.

This case involved the interpretation of Sections 512(c) and (e) of the MCARE Act regarding standard of care testimony in a medical malpractice matter. Relying on dicta in Gbur v. Golio, 963 A.2d 443, 452 (Pa. 2009), the Pennsylvania Supreme Court held that under the exception set forth in Section 512(e), the plaintiff's expert – a physician board certified in internal medicine with a subspecialty in medical oncology – had sufficient training, experience and knowledge as a result of active involvement in a related field of medicine to testify as to the standard of care of the defendant physicians – a board certified otolaryngologist and a board certified radiation oncologist. The Court emphasized that such a competency determination may be made only after determining the precise care at issue and what testimony the expert will present. The decedent underwent radiation therapy and surgery to remove a cancerous tongue tumor. A pathology report from the surgery indicated a high risk of recurrence and metastasis. The sole standard of care issue in this matter was whether, under these specific clinical circumstances, the defendant physicians also should have offered the decedent the option of follow-up chemotherapy and a referral to a medical oncologist. The Court held the plaintiff's expert was sufficiently qualified to offer an opinion as to the standard of care in this instance and that the subspecialties of the expert and the defendant physicians were related given the complexities and realities of modern cancer therapy, where patients obtain treatment with the oversight of multi-disciplinary "tumor boards." While some may argue this opinion erodes the standard of care requirements under the MCARE act, it appears the Supreme Court was extremely careful to limit its holding to the specific care at issue in this complex cancer case.

Case Law Alert - 3rd Qtr 2010