Lead
OPINION
The issue before the Court in this case concerns the qualifications an expert witness must possess in order to testify regarding the standard of care in a medical professional liability case against a physician, pursuant to the Medical Care Availability and Reduction of Error (“MCARE”) Act.
Joseph Vicari (“Appellee”) brought a medical professional liability claim against Joseph R. Spiegel, M.D.; Pramila Rani Anne, M.D.; and Jefferson Radiation Oncology Associates (collectively “Appellants”) after Appellee’s wife, Barbara Vicari, died from metastatic tongue cancer on April 1, 2002, at 39 years of age.
At a jury trial presided over by the Honorable Esther R. Sylvester, Appellee presented testimony from two expert witnesses: Ronald H. Blum, M.D., a medical oncologist, and Peter Berman, M.D., an otolaryngologist. Appellee also presented excerpts from Dr. Spiegel’s deposition testimony, as well as testimony by Appellee himself and the Vicaris’ two children. Appellee then rested his case just prior to the lunch recess on May 2, 2006.
Immediately after the recess, Appellee’s counsel made an oral motion to reopen his case because he was unsure whether Dr. Berman had used the words “to a reasonable degree of medical certainty” during his expert opinion testimony. Notes of Testimony (“N.T.”), 5/2/06, at 101-02. Appellants’ counsel objected to Appellee’s motion to reopen, and following argument, the court denied Appellee’s motion and struck Dr. Berman’s testimony. Id. at 111, 121.
Counsel for Dr. Spiegel then made an oral motion for compulsory nonsuit, arguing that Dr. Blum was not competent to testify against Dr. Spiegel or Dr. Anne as to the applicable standard of care, because Dr. Blum was not board certified in the same field as either of the defendant physicians.
Appellee appealed to the Superior Court, arguing that the trial court had abused its discretion both by striking Dr. Berman’s testimony because it was allegedly not rendered to the requisite degree
Appellants then sought allowance for appeal from this Court, challenging the propriety of the Superior Court’s holding that the trial court had committed error when it had found Dr. Blum unqualified to testify against them.
Whether [Appellee’s] medical oncology expert [Dr. Blum] was qualified to render standard of care opinions against an otolaryngologist and radiation oncologist under Section 512 of the Medical Care Availability and Reduction of Error Act. 40 P.S. § 1303.512.
Vicari v. Spiegel,
With passage of the MCARE Act, the General Assembly created a more stringent standard for admissibility of medical expert testimony in a medical malpractice action by the imposition of specific additional requirements not present in the common law standard. Gbur v. Golio,
(a) General rule. — No person shall be competent to offer an expert medical opinion in a medical professional liability-action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.
(b) Medical testimony. — An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications:
(1) Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia.
(2) Be engaged in or retired within the previous five years from active clinical practice or teaching.
(c) Standard of care. — In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:
(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 the standard 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 approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).
(e) Otherwise adequate training, experience and knowledge. — A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care 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.
40 P.S. § 1303.512.
Thus, pursuant to Section 512, to testify on a medical matter in a medical malpractice action against a defendant physician, an expert witness must be a licensed and active, or a recently retired, physician. In addition, in order to render an opinion as to the applicable standard of care, the expert witness must be substantially familiar with the standard of care for the specific care in question. Furthermore, the expert witness must practice in the same subspecialty as the defendant physician, or in a subspecialty with a substantially similar standard of care for the specific care at issue (“same specialty requirement”). Finally, if the defendant physician is board certified, the expert witness must be board certified by the same or a similar board (“same board certification requirement”). Importantly, the expert witness must meet all of these statutory requirements in order to be competent to testify. However, there is an exception to the same specialty and same board-certification requirements: if a court finds that an expert witness 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’s subspecialty or in a related field of medicine, then the court may waive the same specialty and same board certification requirements.
This Court has directly addressed the requirements of Section 512 only infrequently. In Wexler, supra, we held that a podiatrist was not competent to testify as an expert witness in a medicаl malpractice
More recently, in Gbur, supra, three of six participating members of this Court concluded that a radiation oncologist was competent to testify against a urologist regarding the standard of care for a prostate cancer patient. Id. at 463-65 (Greenspan, J., concurring). Relying on the exception set forth in subsection 512(e), the concurring justices concluded that the radiation oncologist was eminently qualified to testify in the action as a result of his active involvement in the diagnosis and treatment of numerous patients with prostate cancer. Id. at 464-65. The three other justices who participated in Gbur did not reach the merits of the expert witness’s qualifications under the MCARE Act, but rather concluded that the issue had not been properly preserved and thus was waived. Nonetheless, the Court did exрress, albeit in dicta, its opinion concerning the application of subsection 512(e), particularly with regard to the meaning of the phrase “related field of medicine” as used in that subsection. See discussion in text, infra.
Here, the legal issue presented is the same as the underlying legal issue in Gbur: how to interpret the limitations and exception set forth in Section 512 of the MCARE Act regarding medical expert testimony against a physician as to standard of care when the proffered or testifying expert practices in a different subspecialty and/or is board certified by a different board than the defendant physician. This is a question of law, and accordingly our standard of review is de novo and our scope of review is plenary. Mazur v. Trinity Area School District,
Pursuant to the exception set forth in subsection 512(e), Dr. Blum’s unchallenged and undisputed professional qualifications and activities established that he was competent to testify against Drs. Spiegel and Anne as to the specific care at issue. It is of utmost importance to stress that such a competency determination can be made only after delineation of precisely what is the specific care at issue and after consideration of what testimony the expert will render. With this caveat in mind, and to be absolutely clear, we reiterate what this case is not about: There is no allegation that Dr. Spiegel breached the applicable standard of care in his performance of Mrs. Vicari’s surgery to resect the tumor, nor is there any allegation that Dr. Anne breached the applicable standard of care in her administration of radiation therapy to Mrs. Vicari. The sole issue is whether the standard of care applicable to Drs. Spiegel and Anne included the requirement to offer Mrs. Vicari the option of follow-up chemotherapy and to refer her to a medical oncologist for this purpose. Concerning this narrow question, we conclude that Dr. Blum was well qualified, under Section 512 of the MCARE Act, to testify as to his opinion even though he was board certified by a different board and practiced in a different subspecialty than the defendant physicians.
The exception set forth in subsection 512(e) provides that the court may waive same board and same specialty requirements if the proposed expert has sufficient training, experience, and knowledge to testify as a result of active involvement in a field of medicine “related” to the subspecialty of the defendant physician. The statute does not define the term “related field of medicine.” However, in the Opinion Announcing the Judgment of the Court in Gbur, Justice Saylor did consider, albeit in dicta, the meaning of this phrase in the context of subsection 512(e), and suggested that it “must mean more than fields of medicine which are ‘related’ in the most generic sense of the word, since Section 512(e) serves as a component of reform legislation designed to meaningfully enhance the standards governing the admissibility of expert testimony in medical professional liability cases.” Gbur, supra at 459 (Opinion Announcing the Judgment of the Court). Justice Saylor continued his interpretation as follows: “[T]he statute should be read to require a close enough relation between the overall training, experience, and practices of the expert and that of the defendant-physician to assure the witness’s expertise would necessarily extend to standards of care pertaining in the defendant-physician’s field.” Id. Here, we expressly adopt the above two statements from Gbur’s opinion announcing the judgment
In addition, we further expliсitly hold that the “relatedness” of one field of medicine to another for purposes of subsection 512(e) cannot be established in a broad and general sense that will henceforth be applicable to all situations and all claims. Rather, the “relatedness” of one field of medicine to another, under subsection 512(e), can only be assessed with regard to the specific care at issue. Two fields of medicine may be “related” with respect to certain specific issues of care, but unrelated with respect to other specific issues of care. Determining whether one field of medicine is “related” to another with respect to a specific issue of care is likely to require a supporting evidentiary record and questioning of the proffered expert during voir dire. This interpretation of “related field of medicine” is most compatible with the text of subsection 512(e) as a whоle, which sets forth an exception to the formal same specialty and same board certification rules for experts otherwise qualified to testify.
Here, there was no question that Dr. Blum, Dr. Spiegel, and Dr. Anne were certified by different boards and practiced in different specialties. Dr. Blum was board certified in internal medicine •with a subspecialty in medical oncology by the American Board of Internal Medicine. Dr. Spiegel was board certified in otolaryngology by the American Board of Otolaryngology. Dr. Anne was board certified in radiation oncology by the American Board of Radiology. In a general sense, these fields of medicine would not appear to be “related,” but the evidentiary record established that with regard to the specific care at issue, i.e., whether Mrs. Vicari should have been given the option of chemotherapy and a referral to a medical oncologist, these fields surely were “related” for purposes of subsection 512(e) in this case.
This relatedness ultimately springs from the complexities and realities of modern cancer therapy, during which an individual cancer patient often obtains different treatments under the auspices of several different specialties of medical practice, and different specialists often treat the patient in a sequential but coordinated manner. Given the complex and multi-disciplinary nature of many treatment regimens, consensus decisions as to the care of individual cancer patients are often reached by a multi-disciplinary panel of physicians known as a “tumor board,” the composition and activities of which were explored at trial. As Dr. Blum’s undisputed testimony made clear, patients in accredited cancer centers are routinely reviewed by a “tumor board,” which cоnsists of physicians from a variety of specialties and subspecialties, including medicine, surgery, diagnostic radiology, radiation oncology, and pathology. N.T., 5/1/06, at 68, 103. Dr. Blum explained that, at the tumor
The conclusion that Dr. Blum, as a practicing medical oncologist, was actively involved in a related field of medicine to that of Drs. Spiegel and Anne does not, of course, end the inquiry required in subsection 512(e). The question remains whether Dr. Blum, because of his active involvement in medical oncology, had sufficient training, experience, and knowledge to testify as to the specific standard of care at issue. We conclude that he unquestionably meets this statutory standard.
As a medical oncologist, Dr. Blum had maintained a clinical practice for thirty yеars, encompassing the administration of chemotherapy to cancer patients, including head and neck cancer patients. N.T., voir dire, 5/1/06, at 61-62. During the same period of time, Dr. Blum served on, and sometimes chaired, tumor boards, in which capacity he was part of the multidisciplinary panel that reviewed and discussed individual patients to reach consensus decisions as to which treatment or combination of treatments should be recommended.
In sum, we hold that, under subsection 512(e), Dr. Blum had sufficient training, experience, and knowledge to testify as to standard of care for the narrow, specifiс issue of care presented, due to his active involvement in a field of medicine related to that of the defendant physicians.
Order of the Superior Court affirmed and case remanded for a new trial. Jurisdiction relinquished.
Notes
. Act of March 20, 2002, P.L. 154, No. 13, 40 P.S. §§ 1303.101-1303.1115.
. The original complaint, filed December 13, 2002, also named numerous other defendants, each of whom either was dismissed from the suit or settled with Appellee. None of the other originally-named defendants is involved in this appeal.
. More specifically, the pathology report indicated that the anterior margin of Mrs. Vicari’s tumor was "positive for carcinoma at [the] cauterized base," that there was perineural invasion, and that, in one out of the thirty-four lymph nodes examined, there was a two millimeter focus of metastatic squamous cell carcinoma. Surgical Pathology Report, dated 3/6/01, at 2, 3.
. As additional grounds for their motion for nonsuit, Appellants also contended that Appellee had not established causation. Notes of Testimony ("N.T."), 5/2/06, at 118. This issue was not addressed by the trial court and is not before us on appeal.
. At trial, the court did not explicitly state its reasons for finding Dr. Blum not competent to testify against Dr. Spiegel or Dr. Anne; furthermore, in its published opinion, the trial court did not address at all the issue of Dr. Blum's competence to testify, apparently because it did not deem the issue “worthy of comment.” See Vicari v. Spiegel, 1 Pa. D. & C. 5th 1, 2 (Phila.Ct.Com.Pl.2007). Based on the context of the trial court’s statements at trial, we agree with the Superior Court that the trial court accepted defense counsel's argument that the MCARE Act required Dr. Blum to be board certified by the sаme board(s) as the defendant physicians in order to testify against them as to standard of care. See Vicari,
. In addition, Appellee argued before the Superior Court that the trial court had abused its discretion by denying his motion to reopen his case to permit Dr. Berman to state that his opinions were, indeed, held to a reasonable degree of medical certainty. Vicari,
Finally, Appellee argued that the trial court had abused its discretion by failing to find the deposition testimony of Dr. Spiegel sufficient to avoid an entry of nonsuit, particularly when combined with Dr. Blum’s testimony as to causation. Id. at 509, 515. The Superior Court determined that it wаs unnecessary to address this issue because it had already concluded that the trial court had erred by striking the testimony of Appellee's expert witnesses and by granting the nonsuit. Id. at 515.
. In Appellants' Petitions for Allowance of Appeal, they did not challenge the Superior Court’s ruling concerning the requisite medical certainty of Dr. Berman's opinion testimony.
. The Superior Court has addressed the qualifications required of a medical expert to testify as to standard of care, pursuant to Section 512, on several occasions. In Jacobs v. Chatwani,
. In Miville v. Abington Memorial Hospital,
. Dr. Spiegel did not testify further as to the deliberations or recommendations of the head and neck tumor board with regard to Mrs. Vicari's case.
. Out of an abundance of caution, we hasten to clarify here that we are not suggesting that service on a tumor board is determinative in establishing that a proffered expert is competent to testily, under subsection 512(e), against any other physician who also treats cancer patients. That is clearly not the case. However, a proffered expert's service on a tumor board may constitute one relevant and significant factor in a court's determination as to whether the expert has “sufficient training, experience and knowledge” to testify as to the specific standard of care at issue. Subsection 512(e).
Similarly, the fact that two physicians in two subspecialties treat patients with the same condition does not establish that one is competent to testify against the other under subsection 512(e). The court must consider the entirety of the proposed expert’s training, experience, and knowledge in order to determine if the proposed witness’s expertise extends to the relevant standard of care in the defendant physiсian's field.
Concurrence Opinion
concurring.
I join the Majority Opinion. I write simply to address the waiver question Mr. Justice Saylor notes and to explain why I think it is appropriate to reach the merits here; and I also write to make two points of elaboration concerning the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. §§ 1303.101-1303.1115.
As Justice Saylor correctly observes in his Concurring Opinion, until appellee rested his case, appellants never once objected to Dr. Blum’s qualifications to give testimony on the applicable standard of care. Appellants did not move in limine to preclude Dr. Blum’s testimony on the basis of the same board/subspecialty requirements of the MCARE Act, despite the fact that it was clear from Dr. Blum’s cumculwm vitae — forwarded months before trial — that he was a medical oncologist, and not a radiation oncologist, surgeon or otolaryngologist.
Similarly, during voir dire on his expert qualifications, appellants made no objection tо appellee’s offer of Dr. Blum as an expert witness on the standard of care, despite appellants’ confirmation through cross-examination that he was not an otolaryngologist, a head and neck surgeon or a radiation oncologist. If appellants had objected at this early stage in the proceedings, the trial court would have had an opportunity to rule on the issue and appellee would have had the opportunity to attempt to cure any perceived defect under the MCARE Act construct. Instead, appellants waited until appellee rested his case to make a motion for nonsuit based in large part on Dr. Blum’s failure to qualify as an' expert under the strictures of the MCARE Act. There is obvious force in Justice Saylor’s view that appellants waived their challenge by not raising it at the appropriate opportunity. Concurring Op. at 400,
Competing waiver arguments have been forwarded here: i.e., appellee argues that appellants objected too late to Dr. Blum’s qualifications, and appellants argue that appellee himself waited too late, until post-trial motions, to object that their successful argument in securing a nonsuit was untimely. The parties’ respective arguments
We acknowledge Plaintiffs argument that the defendants waived any objection to Dr. Blum’s qualifications because they did not lodge an objection until the day after his testimony, during the argument on their motion for nonsuit. Indeed, any objections to Dr. Blum’s qualifications could have been raised, at the earliest, in a pretrial motion in limine following receipt of his curriculum vitae and expert report or, аt the very least, following voir dire on his qualifications. On the other hand, the defendants argue that Plaintiff waived his waiver argument because he failed to raise it during argument on the motion for nonsuit. Although we do not condone the defendants’ untimely objection to Dr. Blum’s qualifications and find Plaintiffs waiver argument persuasive, because we have determined that Dr. Blum was indeed qualified to render his opinion, we decline to engage in an analysis of the parties’ competing waiver arguments.
Vicari v. Spiegel,
For purposes of our review here, I am satisfied that the Superior Court’s unclear waiver disposition, and the parties’ renewal of their respective arguments on waiver in this Court, should be of no moment. In petitioning this Court for discretionary review, appellants did not pursue their waiver argument, nor did they argue that the Superior Court erred in its confused disposition of the argument, and we granted review limited to appellants’ substantive MCARE Act claim.
The necessity to consider appellеe’s waiver argument is a closer question. Arguably, as the party prevailing below, appellee is free to raise properly preserved alternative arguments, and the Court is then free to determine which arguments to discuss (or to determine to dismiss the appeal on prudential grounds). See generally, Thomas G. Saylor, Right for Any Reason: An Unsettled DoctHne at the Supreme Court Level and an Anecdotal Experience ivith Former Chief Justice Cappy, 47 Duq.L.Rev. 489, 490, 494 (2009) (discussing countervailing arguments regarding Pennsylvania Supreme Court’s authority to “sustain a valid judgment or order of a trial or lower appellate court for any valid reason appearing as of record,” in order “to effectuate substantial justice”). See also Commonwealth v. Edwards,
In these circumstances, I believe the Majority’s decision to decline to reach either waiver argument is sound. We need not reach appellants’ waiver argument because it simply is not encompassed in our grant of review.
On the merits, I offer the following two observations. First, as the Majority states, appellee’s evidence amply established that as a medical oncologist Dr. Blum was qualified under Section 512(e) of the MCARE Act to render an opinion on the standard of care applicable to cancer treatment in the decedent’s case. The MCARE Act obviously was designed to raise the bar for expert witness qualification in medical negligence cases. But the Act should not supplant common sense or the dictates of justice. Indeed, in my view, the Act cannot simply displace the trial court’s evidentiary gate-keeping role such that traditional jurisprudential rules regarding the admissibility of expert witness testimony, deriving from bedrock precepts involving relevance and the overall truth-determining process, no longer apply. See, e.g., Pa.R.E. 702 (witness qualified as expert by knowledge, skill, experience, training or education may testify in form of opinion);
Second, although the parties and the Majority do not focus upon the issue, this case reveals the pitfalls when the Legislature purports to dictate how the courts should determine evidentiary questions, which implicates trial concerns uniquely within the judicial realm. Section 512(e) states that the trial court “may” waive the MCARE Act’s same specialty and board certification requirements if the court determines that the expert qualifies under the multiple parameters the provision then lists. The statute does not say the court “must” аdmit such testimony, only that it “may.” The question then becomes by what standard should that power be exercised? The Majority here does not remand for the trial court to exercise the power so conferred; instead, we hold, as a matter of law, that there is only one permissible ruling: the expert qualifies and must be permitted to testify. Does this ruling square with the language of the statute, or would the import of the statute, if deemed controlling, require a remand and a possible contrary conclusion? For my part, the answer is not in the MCARE Act, but in principles of jurisprudence: absent some competing concern (e.g., cumulative testimony) where an expert so qualifies, not only would it be an abuse of discretion, it would be plain error not to permit the testimony.
. Even if the waiver argument were deemed available to appellants, I would find it lacks merit. Appellants claim that appellee waited too long — until post-trial motions — to argue that appellants waived their challenge to Dr. Blum's qualifications. Ordinarily, if trial error is not raised by a litigant until post-trial filings, the claim is waived. See Pa.RX.P. No. 227.1(b)(1) (post-trial relief may not be granted unless "grounds therefor, ... if then available, were raised in pre-trial proceedings, or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof, or other appropriate method at trial”). And so, appellee’s argument on post-trial motions was untimely if it appears that appellee could, and should, have objected at trial that appellants’ challenge to Dr. Blum’s qualifications under the MCARE Act, raised at the nonsuit stage, was untimely. But I would hold that appellee was not obliged to raise this claim earlier. I believe that the belated timing of appellants’ objection must be considered in assessing appellee’s issue preservation obligations at the nonsuit stage. Obviously, the appropriate response to appellants’ motion for nonsuit would have been an immediate, contemporaneous argument before the trial court that appellants lost their chance to object to Dr. Blum's qualifications when they failed to object during voir dire or during Dr. Blum’s testimony (if not earlier during motions in limine). But, I would not require such foresight by a party under circumstances like those present here. As noted, appellants obviously could and should have raised the expert qualification-based challenge that, once accepted by the trial court, eviscerated appellee’s entire case, during voir dire of appellee's expert — but they did not, which suggests that the timing here was not just belated, but strategic. The modern view of law does not favor trial by surprise or ambush; and finding a waiver here by appellee would invite, if not reward, such tactics. At a minimum, a party that would seek to prevail based upon such a tactic should make certain that its own position has been properly preserved; and appellants have not done that here. In my judgment, in these circumstances, appellee's post-trial motion may properly be viewed as the first appropriate opportunity after he was actually aggrieved where he was obliged to preserve his argument about appellants’ late MCARE Act-based objection and resulting waiver.
Concurrence Opinion
concurring.
I would find any MCARE-based objection waived for failure to raise it in a timely manner.
In this regard, this Court has explained that the primary purpose of the requirement of a timely and specific objection is to ensure that the trial court has the opportunity to correct alleged trial errors. See Dilliplaine v. Lehigh Valley Trust Co.,457 Pa. 255 , 260,322 A.2d 114 , 117 (1974). Other courts have also stressed that a timely and specific objection also affords an opposing party the opportunity to address the objection and, where appropriate, to cure a defect. See generally 75 Am.Jur.2d Trial § 312 (2008) (collecting cases).
Gbur v. Golio,
As for the merits, I agree with the majority to the degree it expressly adopts the principles set forth in the Opinion Announcing the Judgment of the Court in Gbur. See Majority Opinion, at 390,
. The facts in the present case are arguably even more compelling than in Gbur. After Appellee offered Dr. Blum as an expert witness and examined him on voir dire concerning his qualifications, Appellants cross-examined him on voir dire regarding his background and qualifications, particularly as they related to the professional activities of Drs. Spiegel and Anne. The defendants both concluded their cross-examination by informing the court, "That’s all I have at this time.” See N.T. May 1, 2006 at 73, 75; RR. 396a, 398a. In short, they declined to interpose any objection to the admission of Dr. Blum's testimony, although they were well aware of the purpose of that testimony and of the restrictions set forth in the MCARE Act. Additionally, Dr. Anne had moved in limine before trial to preclude Dr. Blum's testimony only to the extent it would rest upon medical literature published after the time of treatment. See RR. 202a. In her motion she made no mention of the MCARE Act. See generally Commonwealth v. Arroyo,