MCARE Exception Provides Courts With Broad Discretion for Qualifying an Expert on Standard of Care
Pennsylvania - Health Care Liability
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On March 25, 2010, the Pennsylvania Supreme Court issued a long-anticipated opinion that addressed the Pennsylvania MCARE statute and its requirements for qualifying an expert in a professional liability claim brought against a physician. The Pennsylvania MCARE statute, among other requirements related to medical practice issues, sets forth criteria for medical experts. Specifically, in Vicari v. Spiegel, 989 A.2d 1277 (Pa. 2010), the Court granted allowance of appeal on the issue of qualifying an expert on standard of care. See e.g. 40 P.S. §1303.512. In an opinion for the majority by Justice McCaffrey, and separate concurring opinions by Justice Saylor and Chief Justice Castille, the Court analyzed MCARE's "same board certification" requirement and the exception to the general rule. In upholding the appellate court's decision, the Court reversed the order of the lower court striking the testimony of the plaintiff's oncology expert against the otolaryngology and radiation oncology defendants. The Court agreed that, under section 512(e), despite being certified by a different board, a medical oncologist can qualify as a standard of care expert against a physician if the oncologist is deemed (by the court) to be competent on the "specific care at issue." Other relevant highlights to the Court's opinion are discussed below.
First, the Court ruled that interpreting the "limitations and exceptions" of section 512 is a question of law. Next, the Court outlined the following requirements for an expert testifying on standard of care under the MCARE Act:
- Must be a licensed and active or recently retired physician; and
- Must be substantially familiar with the standard of care for the specific area in question; and
- Must practice in the same subspecialty as the defendant-physician; or
- Must practice in a subspecialty with a substantially similar standard of care for the specific care at issue; and
- Must be board certified by the same or similar board as the defendant physician. (Emphasis added.)
Generally, an expert should meet each of the enumerated requirements. However, an exception to the general rule exists. Specifically, courts have discretion under section 512(e) in qualifying an expert and may grant exception to the "same specialty/board certification requirements" if the expert has "sufficient training, experience and knowledge to testify as to the applicable standard of care, as a result of active involvement in the defendant physician subspecialty or in a related field of medicine."
In Vicari, the plaintiff's medical oncology expert's credentials were not challenged on cross-examination, nor were objections raised to his experience and/or training. The Court ruled that he was well qualified to opine as an expert on the sole liability question presented in the underlying malpractice claim: whether the two defendant physicians breached the applicable standard of care in failing to refer the patient to a medical oncologist for follow-up chemotherapy. With regard to this narrow issue, the Court determined that medical oncology is a "related field of medicine" to otolaryngology and radiation oncology and, therefore, the oncologist qualified as a standard of care expert.
*Kim is an associate who works in our King of Prussia, Pennsylvania, office. She can be reached at (610) 354-8481 or kamccarthy@mdwcg.com.
Defense Digest, Vol. 16, No. 3, September 2010