Shirlеy C. WEINER, as Executrix of the Estate of Leon J. Weiner, and Shirley C. Weiner, Individually and In Her Own Right, Appellant, v. Robert S. FISHER, M.D., Appellee.
Superior Court of Pennsylvania.
April 1, 2005.
871 A.2d 1283
Argued Nov. 17, 2004.
¶ 18 Judgment VACATED. Case REMANDED for new trial. Jurisdiction RELINQUISHED.
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Shirley C. WEINER, as Executrix of the Estate of Leon J. Weiner, and Shirley C. Weiner, Individually and In Her Own Right, Appellant, v. Robert S. FISHER, M.D., Appellee.
Superior Court of Pennsylvania.
Argued Nov. 17, 2004.
Filed April 1, 2005.
Charles A. Fitzpatrick III, Philadelphia, for appellee.
BEFORE: HUDOCK, TODD and BECK, JJ.
OPINION BY BECK, J.:
¶ 1 We interpret the Medical Care Availability and Reduction of Error (MCARE) Act1 relating to the qualifications of experts. First we address thе Act‘s time frame requirement that the testifying expert be “engaged in or retired within the previous five years from active clinical practice or teaching.” Next, we explore the meaning of the active teaching requirement under the Act.
¶ 2 In this case the court granted appellee-defendant‘s motion for a non suit after finding appellant-plaintiff‘s expert unqualified. We vacate the trial court‘s order and remand.
¶ 3 Leon Weiner, M.D.,2 as a patiеnt, sought medical advice from gastroenterologist Robert Fisher, M.D. in March 1990, May 1994, and June, 1998 for various gastrointestinal symptoms. Although Dr. Fisher ordered a number of medical tests during this eight year period (including endoscopy and colonscopy) and diagnosed the patient with intestinal metaplasia, pernicious anemia, and atrophic gastritis, he found no evidence of malignancy. Approximately seven months after his final consultation with Dr. Fisher, Dr. Weiner was diаgnosed with gastric cancer by another gastroenterologist and underwent a total
¶ 4 Mrs. Weiner, as executrix of her husband‘s estate, filed a complaint in wrongful death and survival actions, naming Dr. Fisher as the defendant. The complaint also included an individual action for loss of consortium. The thrust of the complaint was that Dr. Fisher was negligent in failing to recommend regular and complete follow-up examinations and tests for gastric malignancy, given the patient‘s medical history and his symptoms.
¶ 5 At trial on March 2, 2003, the court refused to qualify plaintiff-appellant‘s expert witness, Dr. William Bisordi, who was to testify as to the relevant standard of care and Dr. Fisher‘s alleged breach. The court held that Dr. Bisordi was not qualified to testify, as he was not currently engaged in active clinical practice or teaching in the relevant area and he had rеtired from these activities in 1995, more than five years before trial. The court declared a nonsuit. After the court denied appellant‘s post-trial motion to remove the nonsuit on July 24, 2003, this timely appeal followed.
¶ 6 Appellant raises three issues on appeal, all of which concern section 512 of the MCARE Act. First, appellant contends that the trial court misconstrued the MCARE Act‘s requirement that a testifying expert “[b]e engaged in or retired within the previous five years from active clinical practice or teaching,” arguing that the five year period is measured from the time of the alleged negligence and not from the time of trial.
¶ 7 In reviewing the entry of a nonsuit, our standard of review is abuse of discretion or error of law. Kovalev v. Sowell, 839 A.2d 359, 368 (Pa.Super.2003), appeal denied, 860 A.2d 124 (2004) (citing Alfonsi v. Huntington Hosp., Inc., 798 A.2d 216, 218 (Pa.Super.2002) (en banc)). Decisions regarding admission of expert testimony, like other evidentiary decisions, are within the sound discretion of the trial court. Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 839 (Pa.Super.1999). We may reverse only if we find an abuse of discretion or error of law. Id.
¶ 8 The issues presented in this case are in essence questions of statutory interpretation. Since interpretation of a statute is a question of law, our review is plenary. Commonwealth v. Gilmour Mfg. Co., 573 Pa. 143, 148, 822 A.2d 676, 679 (2003). However, we are constrained by the rules of statutory interpretation, particularly as found in the Statutory Construction Act.
¶ 9 The statute that we are called upon to interpret establishes criteria for the qualification of an expert witness in a medical professional liability action against a physician. The relevant provisions are the following:
(b) Medical testimоny.—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 fоrth in subsections (a) and (b), an expert testifying as to a physician‘s standard of care must also 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 thе 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).
¶ 10 Appellant contends that the statutory time-frame for retirement “within the previous five years” in section 512(b) refers to the five years prior to the date of the alleged mаlpractice. In other words, appellant argues that the malpractice alleged in this case occurred within the relevant statutory time period, since Dr. Bisordi retired from active practice in 1995 and the claimed malpractice occurred from 1990 to 1998. We disagree.
¶ 11 We look first, as we must, at the plain meaning of the words in section 512(b). The statute is written entirely in the present tense to set the qualifications for an expert who is tеstifying. The first qualification is that the testifying expert must possess a physician‘s license to practice medicine. The unambiguous meaning of the language is that the expert must possess the license at the time that he testifies. There is no statutory contemplation (e.g. through inclusion of language in the past tense or modifying phrases) of the possibility that the relevant time for possession of the license could be at some point in the past. The second qualification is that the testifying expert “[b]e engaged in or retired within the previous five years from active clinical practice or teaching.” Again, the statutory verb is present tense, referring to the time of giving testimony. To apply a different temporal reference point to the segment of the statute that deals with a retired expert would violate the plain meaning of the statute. Based on
¶ 12 Although we believe that the plain language of section 512(b) is clear and unambiguous, and therefore dispositive, we also note that arguments based on a comparison of sections 512(b) and (c) support our interpretation. Section 512(c) deals only with expert testimony concerning a physician‘s standard of care, and gives qualifications, in addition to those of section 512(b), that an expert must possess in order to testify as to this issue. Specifically, the statute mandates that an expert who is testifying as to the standard of care must “[b]e substantially familiar with the applicable standard of care for the specific care at issue as of the time of the allegеd breach of the standard of care.”
¶ 13 We must not overlook the fact that the phrase “as of the time of the alleged breach of the standard of care” is included in section 512(c)(1) and absent from section 512(b). “[W]here the legislature includes specific language in one section of the statute and excludes it from another, the language should not be implied where excluded.” Fonner v. Shandon, Inc., 555 Pa. 370, 378, 724 A.2d 903, 907 (1999). Indeed, by well-established rules of statutory interpretation, the significance is even greater than a mere caution not to imply inclusion. When comparing two similar statutory sections, where one contains a particular provision but the other does not, the difference is significant to show a different legislative intent. Id. at 378-79, 724 A.2d at 907 (citing Commonwealth v. Bigelow, 484 Pa. 476, 484, 399 A.2d 392, 395 (1979)). Sections 512(b) and (с)(1) are similar in that they both specify qualifications for an expert testifying in a professional liability action. However, only section 512(c)(1) specifies that the relevant time of consideration is when the alleged breach of the standard of care took place.3 We must conclude that since the legislature did not include this temporal directive in section 512(b), its intent was distinct in the two sections. We point out that the expert must qualify under Seсtion 512(b) before the additional requirement of Section 512(c)(1) is triggered.
¶ 14 Finally, we note that medical logic as well as legal logic supports the distinction between sections 512(b) and (c). Section 512(c) applies only to experts who are testifying as to the standard of care. However, section 512(b) applies to experts testifying on a variety of medical matters, including not only standard of care, but also “risks and alternatives, causation and the nature and extent of the injury ....”
¶ 15 We thus hold that the phrase “within the previous five years” in
¶ 16 Appellant alternatively contends that the trial сourt erred in not qualifying Dr. Bisordi as an expert on the basis of his teaching activities. Two statutory provisions are relevant to the issue presented in this case. First, for an expert to qualify to testify on a medical matter in a professional liability action, he must “[b]e engaged in or retired within the previous five years from active clinical practice or teaching.”
¶ 17 In the present case, the trial court ruled that Dr. Bisordi was not qualified to testify as an expert because although he “was actively teaching, he was not teaching in the specialized field of endoscopy which is the speciаlty he was being offered to testify in.” Trial Court Opinion, 6/11/04, at 9. See also id. at 11. The relevant subspecialty in this case, and the one in which Dr. Bisordi was offered as an expert, was gastroenterology. The unrefuted evidence showed that both Dr. Bisordi and Dr. Fisher are gastroenterologists. Thus Dr. Bisordi satisfied the requirement of section 512(c)(2) that the subspecialty of the expert witness be the same as that of the defendant physician.6
¶ 18 The trial court erred in focusing its inquiry into Dr. Bisоrdi‘s teaching activities “in the specialized field of endoscopy.” Trial Court Opinion, 6/11/04, at 9. Endos-
¶ 19 The record is clear that Dr. Bisordi wаs offered as an expert in the subspecialty of gastroenterology. N.T. 3/3/03 at 41a. His testimony was to address the standard of care that would have applied when a gastroenterologist was presented with a patient such as Dr. Weiner, who exhibited certain symptoms and had a family history of gastrointestinal cancer. The trial court‘s limited focus on endoscopy, rather than on the subspecialty of gastroenterology, constituted a misinterpretation of the plain meaning of the statute and hence was an error of law.
¶ 20 Because the trial court erroneously interpreted the statute when it held that Dr. Bisordi was not qualified as an expert witness because he did not teach endoscopy, we must remand for a reconsideration of his qualifications as a teacher of gastroenterology. In remanding, we are aware that there is no definition of teaching in the statute. The parties agree that not all teaching would satisfy the statutory requirements;9 however, there is little guidance in statutory or case law to assist the trial court in determining what level and involvement in teaching does satisfy the statute.
¶ 21 After applying the normal rules of statutory construction, we conclude that section 512(b)(2) does not require that the expert‘s teaching responsibilities be full-time. In section 512(e), which allows the court to waive the same spеcialty and board certification requirements for an expert under certain circumstances, the statute expressly requires “full-time teaching.”10 However, the adjective “full-time” is missing from the provision of relevance to the present issue, section 512(b)(2). We cannot imply the inclusion of the adjective “full-time” in sec-
(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.
¶ 22 At the other end of the extreme, we agree with amici11 that a de minimis level of teaching is not sufficient to satisfy the statute. The level of teaching must be sufficient to establish the general requirement of the statute that the witness possesses “sufficient education, training, knowledge and experience to provide credible, competent testimony ....”
¶ 23 The record is unclear or vague as to whether Dr. Bisordi actively teaches in the area of gastroenterology, or whеre he teaches. Dr. Bisordi is not affiliated with any medical school, although he is affiliated with two hospitals as an attending physician. The record is also not clear as to several other factors: whether his students are interns, residents, fellows, or others; the subject matter he teaches; the amount of time per week he teaches; the academic level of his students; the settings where he teaches; and the compensation he receives for teaching.
¶ 24 Absent record evidence of the above, we can not determine if Dr. Bisordi qualifies as an expert witness. On remand the inquiry must focus on whether Dr. Bisordi teaches gastroenterology. Dr. Bisordi testified that his teaching responsibilities “encompass areas of gastroenterology” and that he teaches “areas of quality of care” related to gastroenterology. Such vague descriptions are not sufficient to qualify Dr. Bisordi as a physician who is actively teaching. The statute provides that the expert must be in active clinical practice or teaching. The word active modifies both clinical practice and teaching. The burden to establish Dr. Bisordi‘s qualifications lies with appellant, who is proposing him as an expert witness. Kovalev, supra at 363-65. To satisfy this burden, appellant must provide more than vague pronouncements of teaching activity. One purpose оf the MCARE Act is to ensure that an expert witness “possesses sufficient education, training, knowledge and experience to provide credible, competent testimony ....”
¶ 25 Appellant‘s third claim is that section 512 of the MCARE Act is unconstitutional. Given our resolution of this case, we need not address the constitutional issue.
¶ 26 Order vacated and remanded for further proceedings. Jurisdiction relinquished.
¶ 27 TODD, J. files a Concurring Statement which is joined by HUDOCK and BECK, JJ.
¶ 28 HUDOCK, J. also joined the Opinion by BECK, J.
CONCURRING OPINION BY TODD, J.:
¶ 1 I join in the opinion оf my esteemed colleague Judge Beck on behalf of the Majority. I write separately only to emphasize the troublesome application of the 5-year rule for expert testimony under
¶ 2 HUDOCK and BECK, JJ. join.
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