Play It Safe: When Making Objections Under Section 512 of MCARE, Be Specific!

Pennsylvania -- Health Care Liability

Section 512 of the Pennsylvania Medical Care Availability and Reduction of Error Act (MCARE) was recently at issue before the Supreme Court of Pennsylvania in the case of Gbur v. Golio, 963 A.2d 443 (Pa. 2009), in which the Court affirmed the trial court's decision to allow a board certified radiation oncologist to testify regarding the standard of care for a board certified urologist.

Pursuant to MCARE Section 512(c), an expert testifying regarding the standard of care for a defendant physician must:

(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 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 appropriate board, be board certified by the same or similar approved board except as provided in subsection (e).

Section 512(c)(1) is the codification of the common law standard for experts testifying against defendant-physicians, while 512(c)(2) and (3) were added by the General Assembly to ensure that experts testifying regarding the standard of care would share the same or a significantly similar medical background as the defendant-physician.

The trial court may waive subsections (c)(2) and (3) if the standards set forth in Section 512(e) are met:

A court may waive the same specialty and board certification requirements . . . 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.

The Estate of Joseph Gbur, Jr. brought the underlying action in the Court of Common Pleas for Allegheny County. Gbur alleged the urologist treating him for prostate cancer breached the applicable standard of care by failing to report the findings of a bone scan, which indicated Gbur's prostate cancer had metastasized to his jaw, ribs, spine, and pelvis. The urologist then recommended Gbur undergo brachytherapy (the implantation of radioactive seeds into the prostate), which is not recommended for patients with metastasized prostate cancer.

Gbur's expert was a board certified radiation oncologist, not a board certified urologist. Prior to trial, the urologist's attorney moved to preclude the testimony of Gbur's expert by citing Section 512 of MCARE. He argued a radiation oncologist could not testify regarding standard of care of an urologist. His motion was denied, Gbur's expert testified, and a verdict was returned in favor of Gbur's Estate.

The Superior Court affirmed the trial court's ruling by finding the testimony of the radiation oncologist had little to do with urology and was mainly focused on the results of Gbur's bone scan. According to the Superior Court, Gbur's expert was eminently qualified to render his opinions regarding the bone scan.

At the Supreme Court, the urologist's attorney asserted there was a dearth of testimony in the record to satisfy 512(c)(2) - that Gbur's expert practiced in the same or similar subspecialty as the defendant. He further argued the expert failed to satisfy 512(c)(3) - that he was board certified by a similar approved medical board as urology. He emphasized that the trial court and Superior Court failed to address sections 512(c)(2) and (3) in their opinions. This utter lack of analysis, according to the urologist's attorney, represented reversible legal error.

In the Supreme Court's official opinion, Justices Saylor, Eakin, and Todd agreed with the attorney's arguments. They held that the trial court and Superior Court failed to address the same subspecialty requirement of 512(c)(2) and the board certification requirement of 512(c)(3). They did not, however, blame the trial court or Superior Court for this error. Instead, they held that the attorney failed to preserve his arguments because he cited Section 512 as a whole and not the precise subsections of 512 on which his argument relied. Specifically, they determined, "In failing to put the trial court on sufficient notice that he intended to invoke Section 512(c)(3), [he] failed to preserve such issue for appellate review." They went on to explain, "[w]hile we recognize that our courts must strive to maintain a high caliber of performance in the administration of justice, the litigants also bear some responsibility in assisting the courts in achieving the desired sharpness." Essentially, it is not the bench's fault if they make an error of law. It is the bar's fault for not pointing them in the right direction.

They next explained the complex nature of MCARE by stating:

The MCARE Act's expert qualifications provisions present technical matters raising novel legal and factual questions involving a sophisticated, multi-dimensional field of higher learning. We do not believe it is too much to ask of trained legal professionals litigating medical malpractice actions at the trial level to treat the subject matter accordingly.

Justice Greenspan authored a concurring opinion which took issue with the official opinion. She held the issue was preserved for appeal when the attorney cited Section 512 as a whole and argued the plaintiff's expert should be precluded from testifying as to "the standard of care." This, according to Justice Greenspan, should have placed the trial court on notice that he was referring to 512(c), which is entitled "Standard of Care." Justice Greenspan still affirmed the trial court. She found sufficient evidence in the record to permit a wavier under Section 512(e), which allows the waiver of both the similar subspecialty requirement in 512(c)(2) and the board certification requirement in 512(c)(3).

In the end, the lesson learned from Gbur is that parties must be vigilant in forming arguments and objections at trial. When relying on MCARE, one must specifically cite the section and subsection on which an argument relies. Otherwise, the Court's error of law could ultimately be found waived.

* Jonathan is an associate in our Philadelphia, Pennsylvania, office who can be reached at (215) 575-2881 or

Defense Digest, Vol. 15, No. 2, June 2009