*1 928A.2d 973 WEXLER, Appellant Beverly Mazur, M.D., Appellees. M.D., HECHT, Donald W. Paul J. Pennsylvania. Supreme Court of April 2007. Resubmitted June Decided *2 Bender, Wexler, Lee Philadelphia, S. for Beverly appellant. Rieders, Rieders, Travis, Harris, Clifford Alan Humphrey, Waffenschmidt, curiae, Williamsport, Waters & for amicus Pa. Trial Lawyers Ass’n. Savon, Naulty, Scari- Guiliano, M. Thomas Renee
Christine Hecht, for Paul J. L.L.C., McDevitt, Philadelphia, camazza & Mazur, M.D., appellees. M.D., and Donald W. Solis-Cohen, Block, And Wolf, Hoffman, Schorr B. Robert curiae. Soc., amicus appellee Pa. Medical for Harrisburg, Ciechanowski, Duane Poch O’Donnell, I. Helena Beatrice al., D.P.M., Marón, et L.L.P., for Donald Morris, Philadelphia, amici curiae. appellees EAKIN, SAYLOR, CASTILLE, C.J., CAPPY,
BEFORE: FITZGERALD, JJ. BAER, BALDWIN
OPINION Justice SAYLOR. whether, under appeal in this dispositive
The issue Act, a of Error Reduction Availability and Care Medical *3 concern- expert as an testify to competent podiatrist malpractice in a medical of care standard applicable the ing surgeon. orthopedic an against action advanced the commenced (“Appellant”), Beverly The Wexler plaintiff, M.D., Hecht, a medical J. in 1999 Paul against action present Sur- Orthopaedic American Board certified doctor the action. dismissed from later colleague and a who was gery, occur- malpractice of medical asserted a claim complaint The Appellant a bunion. treatment for the course of ring during fol- complications post-operative that she alleged experienced Hecht, and including pain Dr. surgery performed lowing Further, that she she averred of her foot. swelling top on the crutches, led to she was although to without unable walk was to the According be the case. not believe that would surgery corrective ultimately underwent complaint, Appellant foot, her continuing problems repair to by podiatrist discom- pain, some residual experience to but she continued breached to have alleged Hecht fort, Dr. was scarring. and care, monetary dam- and of medical standard applicable sought. were ages cur- order, submitted the pre-trial Appellant
Pursuant to a Lazar, D.P.M. vitae riculum report of Lawrence expert (Doctor Medicine), sur- specializing podiatric of Podiatric from the Dr. Lazar that Dr. Hecht deviated gery. opined he surgery; provided standard of care in the ordinary care; alleged that these devia- post-surgical substandard proximate Appellant’s tions the direct and cause were complaints. a motion in limine 2002, Dr. In November Hecht filed from at trial on the seeking preclude testifying Dr. Lazar that, he ground podiatric surgeon, competent as a was the standard of care to an ortho- testify concerning pertaining Dr. Hecht the liberal common law pedic surgeon. invoked of an governing competency standard qualifications witness, expert namely pretension a reasonable to specialized Bennett v. inquiry, see subject in the matter of the knowledge Graham, 205, 210, (1998), as well as stringent then-newly- the more standard set forth in the enacted Medical of Error Availability Care Reduction Act.1 In that Dr. response, Appellant position advanced competent Lazar was under the both and requested standards at he hearing which could elaborate on his basis for knowl- alternative, edge. Appellant requested opportunity procure new because motion was filed on statutory eve trial and invoked a enactment that post-dated the commencement of the action. pleas
The common court Dr. motion granted Hecht’s limine, initially in an oral indicating ruling apply- it was common-law standard. N.T., 17, 2002, ing December that, rejected Appellant’s at The court in all argument *4 pertinent respects, pertaining standard of care to bunio- nectomies podia- osteotomies was same for both and/or instead, orthopedic surgeons, reasoning, trists and that podia- try orthopedic represented entirely and medicine two different thought Appel- schools of and The court also denied practice. continuance, lant’s for a a request considering itself bound (as 1. Act of March P.L. No. 13 amended 40 P.S. Act”). 1303.101-1303.910) (the §§ "MCARE judge.2 Finally, a motions on Dr. previously decision made motion, in the summary judgment the court entered Hecht’s favor, testimony regard- as lacked essential Appellant doctor’s support standard of care to her medical ing governing claims. and appealed entry judgment, adverse Appellant an under Rule of pleas opinion the common court issued 1925(a). There, in contrast to its Appellate prior Procedure primarily the common court rested its decision ruling, pleas Act. In the court couched its upon particular, in terms of four of the enactment’s Section opinion provisions 1) 512(a), alia, inter precluding, presentation 512: Section professional liability of an in a medical expert opinion suffi- against physician “possesses action unless witness education, to knowledge experience provide cient and training, 2) 1303.512(a); credible, § testimony,” 40 P.S. Sec- competent 512(b)(1), tion an on a medical requiring expert testifying possess physician’s prac- matter to an unrestricted license to 3) 512(c)(1), medicine, 1303.512(b)(1); § tice Section P.S. an as to a standard of requiring expert testifying physician’s substantially applicable care to be familiar with the standard time specific alleged for the care at issue as of the of the 4) 512(c)(2), breach, 1303.512(c)(1); P.S. requiring expert testifying physician’s as standard in the as the defendant practice subspecialty care same substantially that has a similar physician, subspecialty undeveloped underlying 2. The basis for the denial continuance is record, challenge ruling Appellant presented a as of has not complained appeal in her statement of matters of on under Rule of 1925(b), questions presented appeal Appellate Procedure or in her on Rather, questions presents required under Rule 2116. all that she are explicitly preclude Dr. centered on the correctness the decision to testimony. Accordingly, any challenge Lazar’s to the (‘‘[O]rdinarily denial of the continuance is waived. See Pa.R.A.P. 2116 point no will be considered which is not set forth in the statement of Castillo, thereby."); questions suggested involved or Commonwealth v. 395, 401-03, (2005) (reaffirming the rule 779-80 questions complained not raised in a statement of matters of on waived, 1925(b) purpose appeal explaining are that the of a Rule development supporting of the basis trial court statement is to ensure rulings). *5 issue, of care for the care at specific standard P.S. 1303.512(c)(2).3 § here, to to particular regard
Of relevance our decision 512(b)(l)’s requirement physician’s of an unrestricted medicine, to the common court practice pleas license observed proper, that Dr. Lazar never attended a school but rather, his from a school of degree Pennsylvania received medicine, the podiatric by curriculum of which limited (“The § statute. curriculum at taught P.S. 42.7 of be podiatric surgery schools medicine and shall confined to subjects podiatric covered the definition of medicine as act.”). in this The developed contained court further that the practice podiatric medicine itself is limited to the diagnosis and treatment of the foot and of the leg anatomical structures foot, the functions of the governing including incidental ad- 42.2(a). § ministration and prescription drugs. See P.S. Additionally, highlighted the court are li- podiatrists through censed a different Board regulatory body, State doctors, Podiatry, than medical are licensed through who 42.2(b), § Board of Compare State Medicine. 63 P.S. that, § 422.2. with 63 P.S. the court noted in its Finally, central definition of “health care the MCARE Act provider,” separately thus, delineates “physicians” “podiatrists,” from the perspective, court’s be- expressly differentiating categories of professionals. tween two Since the court concluded that Dr. Lazar physician holding was not a medicine, license to practice unrestricted he unqualified was 512(b)(1) under Section opinion concerning render an doctor, applicable pertaining standard care to a medical such as orthopedic surgeon Dr. Hecht. divided, Superior
The
Court affirmed in
published
opinion,
concluding that the trial court had not
its
abused
discretion
Dr.
granting
Hecht’s motion to exclude Dr. Lazar’s testimony
waivable,
512(b)(1)
(c)(2)
requirements
3. The
of Section
are
in the
court,
pleas
subject
specified
sound discretion of the common
condi-
tions,
1303.512(b), (e),
§
except
see 40 P.S.
that the statute does not
provide
requirement
possess
for such waiver of the
an unrestricted
physician's
practice
testimony
license to
medicine relative to
concern-
1303.512(b).
ing
applicable
standard of care. See 40 P.S.
that pertaining
either the
law standard or
under
common
Hecht,
Judge
dissent,
Johnson authored the
taking
position
that Dr. Lazar possessed sufficient qualifications to meet the
common
requirements
Wexler,
law
for expert testimony. See
(Johnson, J.,
testify what, any, determine if overlap offered to only and practice,” doctors’ respective expertise exists between impossible proffered it conclude that the making “properly testify against was not defen- qualified Id. at 105. dant.” matter, interpreta- present entailing review the
Our principles, and the application legal tion of various statutes plenary. Applicability of the Act I. MCARE Act, of the Regarding applicability Court, that presently position advances Superior Appellant under the MCARE competency standard application Dr. represent Act to her action Hecht would against application retroactive of new law. this impermissible, Johnson, the admoni- Judge Appellant like references regard, Act that no Statutory tion in Section 1926 of the Construction clearly to be to be unless statute is construed retroactive Assembly. so the General See 1 manifestly intended § 1926. Pa.C.S. prescription
Dr. Hecht relies on MCARE Act’s after sixty days effective its was to become 2002, enactment, 5108, see Act P.L. No. 13 of March express as an directive to couching specification statutory Further, Dr. litigation.5 the statute Hecht apply pending has regularly applied so Superior observes See, Fisher, A.2d 1284- e.g., enactment. Weiner (Pa.Super.2005); Hosp. Bethea v. AFL-CIO Philadelphia Ass’n, Wexler, (Pa.Super.2005) (citing 871 A.2d 225-26 101). that, at Hecht also in determining *8 involved, is courts retroactivity truly the issue of have whether gives on the a previous concentrated whether new law transac- provisions of 5. Dr. Hecht’s amici also note that number of other applicable only expressly Act were made to causes of MCARE action arising on or after the date of the MCARE Act's enactment. See Act of 2002, (“Sections 5105(b) 504(d)(2), No. 13 March P.L. 508, 509, 510, 505(e), apply and 516 shall to causes of action which section.”). after the of this arise on or effective date than ascribed under the law. legal prior tion a different effect See, 569, 575-76, e.g., Creighan City Pittsburgh, v. (1957) (“[A] as regarded 132 A.2d statute is not of the mere fact that it relates operating retroactively because events, or antecedent facts for its upon to antecedent draws (citation McMahon, omitted); operation.”) McMahon (1992). 592, 601, According Pa.Super. Hecht, Dr. of the Act’s application expert compe- regarded standard to should be tency pending litigation it not alter a burden prospective, plaintiffs as does substantive relief, rather, proof regulates or entitlement to but merely the manner of Dr. Hecht’s in this is proof.6 position regard amici, in developed greater Pennsylvania detail his Marón, DPM, Medical Donald Society, Hospital AFL-CIO Association, Irwin, T. MD.7 and John to the
Certainly,
statutory
this Court adheres
rule of
con-
struction
of clear
highlighted by Appellant requiring
finding
Legislature
and manifest intent
support retrospec-
however,
application
agree,
tive
an enactment. We
with Dr.
adjustment
Hecht that the
at hand
evidentiary standard
trial,
relative to future
albeit of an action
as of the
pending
adjustment,
time of the
should not be
as a retroac-
construed
In
application.
regard,
tive
find that Judge
we
Beck’s
Folk,
(Pa.Su-
in
explanation set forth Warren v.
challenged constitutionality requirement of the filing 1042.3, of a certificate of merit under Rule of Procedure Civil the alleged malpractice prior when occurred to the 2003 Appellant’s argument concerning 6. Dr. Hecht also contends that retro- application underdeveloped Appellant’s active is waived as it is brief. brief, however, Appellant's argument expressly While she does invoke Statutory Judge 1926 of Construction Act and Johnson's dissenting opinion support argument anof that Section 512 of the applied argu- MCARE Act should not be to her action. We find this ment sufficient to warrant our review of the matter. amicus, Association, Appellant's Pennsylvania Lawyer's Trial does position not advance a on this issue. *9 128 disagreed Superior of the rule. The
effective date
represented
application
such
assertion that
plaintiffs
that a
reasoned
Beck
Judge
one.
retroactive
impermissible,
merely be-
retrospectively
operate
rule or statute does
that
from conduct
in a case that arises
it is applied
cause
deriving from
expectations
or alters
promulgation
its
preceded
Warren,
(citing Landgraf
at 308
laws. See
prior
269-70,
Products,
114 S.Ct.
511 U.S.
Film
U.S.I.
indicated,
(1994)). Rather,
“the
she
1499,
In his dissenting opinion, Mr. Justice
Castille describes
of
present application
Section 512 of the
Act as
MCARE
See,
“unlawfully
134,
e.g.,
retroactive.”
at
Dissenting Opinion,
we consider the
provide
opportuni-
to
reasonable
ty
adjustment
preparation.
for
and
lines,
Along
these
the entire
promulgated by
Rules of Evidence
"trials,
generally
applicable
hearings
are
proceedings
to
and
Pennsylvania
covered
begin
Rules of Evidence which
on or after
rules,”
Notes,
...
the effective date of said
Pa.R.E.
Historical
merely
to actions that were commenced after the effective date.
Parenthetically,
concerning
the determination
whether a statute is
being retroactively applied has been sometimes
in terms of
couched
See,
whether or
"purely procedural”
not the statute addresses
matters.
Sales,
e.g., Morabito’s Auto
made for persons compensation reasonable legal process fair in this Commonwealth.” negligence injured due to no Further, simply argument there is § 1303.102. P.S. a dearth that there is suggest in this case that would proffer testify willing in Pennsylvania orthopedic surgeons by plaintiffs action pursued causes of óf legitimate support negligence of medical on account injury or loss suffering that event, asserted has never Appellant In any field. such under qualified not have obtained she could Therefore, plaintiffs if the class even Act. the MCARE existed, be no basis there would the dissent suggested suggested is within Appellant conclusion that support class.10 application position its supports
The dissent also
unduly
cases is
pending
Act to
of the MCARE
in the
it unfolded
this case as
a timeline of
burdensome
at
Dissenting Opinion
court.
pleas
common
*11
timeline, however,
absent from
Notably
at 987.
Act,
before
nine months
of MCARE
passage
date of
Dr. Lazar’s testimo-
excluding
ruling
court’s
pleas
the common
critically
Moreover,
depends
of unfairness
the assertion
ny.
a continu-
deny
decision to
the trial court’s
of
propriety
on
qualify-
witness
to secure
Appellant
to permit
ance
141-43,
We that Section 512 trials applies at. date, occurring medical actions after its effective assuming the affordanee of time for again, adequate prepara Bethea, adjustment. tion and Accord at 226. Application II. of the MCARE Competency Act’s Standard Our review of the specific requirements Section (b)(1) focuses on the of subsection an expert directive testifying about the of care applicable standard must possess physician’s an unrestricted license to medi- practice cine, 1303.512(b)(1), § see 40 provision P.S. as we find this dispositive.
Appellant requirement contends that Dr. Lazar meets the 512(b)(1) of his license to practice podiatric virtue points medicine. She to the definition of in Sec- “physician” tion of the Statutory Construction Act as “an individual engage licensed under the of this laws Commonwealth ...,” practice surgery medicine and all its branches characterizing podiatry simply Pa.C.S. one branch of medicine. also references a from a Appellant definition that a is one dictionary suggesting physician graduat- ed from a college osteopathy medicine and licensed *12 appropriate the board. Act, regard, certainly Legislature, enacting
11. this the in the MCARE ordinary procedures, was entitled to take into account that court such circumstances, availability appropriate as the of a continuance in would just ensure the fair and administration of trials conducted under its such, commentary terms. As the timeline is to a review of better suited available) (were deny the trial court's decision to a continuance it than it to a broader that the MCARE is scale determination Section 512 of "unlawfully Act is retroactive.” line of advanced reasoning the argument Dr. Hecht’s follows the court, in noting particular by pleas the common expressly distinguish statutes many Act and other note and supra physicians podiatrists. between Dr. and his amici observe text. Hecht accompanying speci- “physician” of recitation of definition Appellant’s detail, significant Act omits Statutory in the Construction fied the act of scope of required in that licensure is “within Practice Act of 20, 1974, the Medical July known as medicine and amendments, osteopathic of practice its or 5, 1978, known of the act of October scope surgery within Act, and its amendments.” Medical Practice Osteopathic as the omitted). (citations 1 Pa.C.S. amici, Hecht, the common Dr. his agree with
We court, on this as well. point and the pleas Superior application, clearly overlap practical there is some Although that the legislation from the of referenced panoply it is evident line of the clear and formal aware of Legislature well of the of medicine practice regulation demarcation between medicine. podiatric regulation practice generally Thus, reference Sec Assembly’s find that the General we 512(b)(1) physi an unrestricted “possessing tion to an expert denotes unambiguously medicine” practice cian’s license appro board licensed state osteopath medical doctor Further, no provision since there is practices.12 to such priate to expert relative requirement for waiver care, see note supra standard of concerning applicable Dr. concluded that appropriately the common court pleas Act, to provide under the MCARE unqualified, Lazar was action. support Appellant’s essential to evidence Hearing III. The Refusal to Conduct court contention that the trial also maintains her Appellant his testify regarding Dr. Lazar to by failing permit erred history suggests Parenthetically, legislative the MCARE Act Assembly employed expert competency standard that the General Society Pennsylvania in Section 512. See proposed Medical 13, 2002, Journal, February Legislative at 301. House *13 limine, motion in on Dr. Hecht’s hearing at the qualifications Since, however, it undisputed is urging. despite Appellant’s practice to physician that Dr. Lazar is not licensed as any analogue, by the State Board Medicine medicine opinion his excluding court did not err in pleas common care on the standard of concerning applicable existing record.13 affirmed. Superior
The order of the Court is EAKIN and GAPPY and Justices Chief Justice join the opinion. FITZGERALD files a which dissenting opinion
Justice CASTILLE join. BAER and Justice BALDWIN Justice CASTILLE, dissenting.1 Justice issue Majority the substantive Opinion,
As framed
whether,
the Medical Care
today
is
under
before
Court
(“MCARE
Act,
Act” or
and Reduction of Error
Availability
(as
“Act”),
20, 2002,
amended
Act of March
P.L.
No.
perceives
arising
trial court's
also
unfairness
from the
13. The dissent
grant summary judg-
to
decision to broaden the basis for its decision
1925(a),
opinion
Appellate
purportedly
which
in its
under
Rule
ment
any
develop
responsive
"deprived
parties
opportunity
to
a record
provisions.”
Dissenting Opinion at
to
[the
Act's]
J.,
J.)
Wexler,
(Johnson,
(Castille,
(quoting
Rule 702 of this Court’s Rules of states the Evidence settled common standard governing admissibility law testimony, and as expert provides follows: scientific, If specialized technical or other knowledge beyond possessed by a assist the trier of fact to layperson will issue, or -understand evidence to determine a fact a skill, qualified witness as an expert knowledge, experi- ence, or education thereto in the form training may testify of an opinion otherwise. 702,
Pa.R.E. 702. This standard is identical to F.R.E. single exception “beyond of the a possessed by (comment). layperson” additional restriction. See Pa.R.E. 702 “Aid to the trier of fact is the basic test for admissibility Strong ...” expert testimony under this standard. al., et (5th 1999) 13, 59-60 n. 14 ed. Evidence, on McCormick 702). F.R.E. This test for (construing qualification traditional See, of expert witnesses has been described as a liberal one. Marinelli, e.g., Commonwealth v. 570 Pa. Tavern, (2002); Miller v. Brass Rail (1995).
A.2d In extinguishing plaintiff/appellant’s cause of action in case, majori- this medical both the malpractice Superior expert rely upon Majority Opinion and the ty Act. With forth the MCARE set standard qualification very Act works testimony, expert respect defen- revolution, of medical in favor deliberate for admissibility dants, standard heightened adopting of the Act Thus, 1303.512 testimony. expert medical reads as follows: Expert qualifications
§ 1303.512. competent be (a) shall person RULE.—No GENERAL professional in a opinion medical expert medical offer pos- person unless that physician liability against action education, knowledge experi- training, sufficient sesses and fulfills credible, competent to provide ence in this section set forth qualifications the additional applicable. on a
(b) testifying MEDICAL TESTIMONY.—An care, risks and matter, including standard and extent alternatives, and the nature causation *15 following qualifications: meet the injury, must (1) practice license to physician’s Possess an unrestricted the District of Columbia. state or any medicine (2) the five previous in or retired within engaged Be teaching. practice clinical or years from active Provided, however, may requirements court the the waive than the matter other expert for an on a this subsection is expert that the of care if the court determines standard or scientific about medical testify competent otherwise education, training experience. or by issues virtue of (c) require- to the addition OF CARE.—In STANDARD (a) (b), expert testify- an forth in subsections ments set also must meet the standard of care physician’s as to a ing following qualifications:
(1) the standard applicable familiar with substantially Be of the time of the care at issue as specific of care for the of care. of the standard alleged breach (2) as the defendant subspecialty in the same Practice substantially has a subspecialty or in a which physician issue, for care at specific similar standard of care the (d) (e). except provided as subsection (3) certified an physician the event the defendant board, be board certified the same or a approved board, similar as in subsection approved except provided (e).
(d) may CARE court waive OUTSIDE SPECIALTY. —A expert testifying the same for an subspecialty requirement diagnosis on the standard of care for the or treatment of condition if the court determines that:
(1) expert diagnosis is trained or treatment condition, applicable; (2) the defendant care for that condi- physician provided physician’s specialty tion and such care not was within or competence.
(e) TRAINING, EXPERI- ADEQUATE OTHERWISE AND court may ENCE KNOWLEDGE.—A waive specialty requirements same and board certification for if testifying as to a standard of care the court determines that sufficient expert possesses training, experience as a knowledge provide result of active in or full-time teaching involvement medicine in the or a related field of applicable subspecialty medicine time previous five-year period. within 40 P.S. 1303.512.
Because the Act into effect until after go did alleged malpractice and after commencement of the case judice, sub the first issue is the Act even applies. whether 19, 2002, May sixty days Section 512 became on after effective its March The Superior enactment date. *16 standard, the use of the Act upheld noting only sections of the MCARE Act to ‘causes of apply “[c]ertain action arise on or date’ of those which after effective sections[,] ... such applies caveat Section [whereas] [n]o Hecht, 95, 1303.512.” v. A.2d 101 (Pa.Super.2004) Wexler 847 (citations omitted).
137 1926 of the Act Statutory Construction states that no statute is to be construed to be absent a clearly retroactive manifested intent to that effect by Assembly. the General 1 Pa.C.S. 1926. The Assembly General did not expressly However, state that Section 512 was to apply retroactively. this fact does not the inquiry. end Application new standard to a arising trial from occurring conduct before the operative date of the Act could be said to be unlawfully only retroactive if it prohibited had a effect for retroactivity purposes. As this Court has noted: manifest, however,
It is [i.e., principle the Sec- tion 1926 directive respecting retroactivity] becomes per- tinent only after it has been determined that a proposed of operation a statute would indeed be retrospective. this regard, our courts have held that a statute does not operate retrospectively merely because some of the facts or upon conditions application depends which its came into existence prior to its enactment. Commonwealth, v. Dep’t 210, Gehris Transp., 471 Pa. 369 (1977). 1271, Thus,
A.2d 1273 under precedent, this Court’s “Retroactive laws have been defined as those which take away or impair rights laws, vested acquired under existing create new obligations, impose a duty, new attach a new disability in respect to the transaction or consideration already Combs, past.” 23, Nicholson v. 550 Pa. 703 A.2d 407, (1997) (6th 411 Dictionary (citing Black’s Law 1184 ed. 1990)). Commonwealth,
Alexander v. 592, Dep’t Transp., 583 Pa. (2005). Furthermore, this Court has held that statutes affecting purely procedural matters may applied be to litigation existing enacted, at the time the statute was being without deemed unlawfully retroactive, but that an application affecting sub- See, stantive rights is more problematic. e.g., Morabito’s Auto Commonwealth, Sales Dep’t Transp., (1998); Estman, A.2d accord Commonwealth v. (Pa.2007). Thus, A.2d question whether a statute violates the proscription against retroactive application
138 substantive concerns legislation turns on whether
often
one,
a
is
difficult
question
matters. This
procedural
it elects
why
in
acknowledges
explaining
Majority
procedure.
versus
in terms of substance
the question
address
9,
Judge
n. 9.
The demarcation between
notoriously
is
“purely procedural”
that are
and those
rights
amongst generations
disagreement
and has fostered
vexing
52,
496 Pa.
Authority,
v. Port
Laudenberger
jurists. See
(“The
a universal
(1981)
to devise
147,
attempt
A.2d
150
436
inherently proce
rule is
determining
for
whether
principle
in
little success
has met with
in nature
or substantive
dural
“ ‘(I)n many situations
jurisprudence.”).
of our
history
that rational
are so interwoven
and substance
procedure
” Laudenberger,
well-nigh impossible.’
becomes
separation
Loan
Indus.
v.
at 150
Cohen
(quoting
436 A.2d
Beneficial
(1949)
559,
1221,
It is no accident that the MCARE Act is codified in Title Act, Insurance. 102 of the governs which Section which “Declaration of comprises Assembly’s poli- General overall lists, cy,” legislation, as one of the of the apparent purposes the desire to make medical professional liability insurance “obtainable at an affordable reasonable cost” throughout and which, turn, in the overriding Commonwealth should serve making of “a purpose comprehensive high-quali- available and (3). 1303.102(1), health ty system.” § care 40 P.S. Section Act, provision 512’s is 5 of Chapter found Liability.” which entitled “Medical Professional The addi- legislative attending tional “Declaration of this policy” chapter notes that declares that it Assembly General finds and “[t]he purpose chapter legal process is the to ensure a fair compensation injured and reasonable for due to persons medi- cal in this Id. 1303.502. In negligence Commonwealth.” Assembly’s the General a stricter limitation on judgment, than that expert testimony which existed at common and law judicial under rules of and that exists procedure, which with to other of the respect experts, apparently part was envisioned alia, “fair legal process” which inter operate, would lower the cost of medical insurance. Section 512 malpractice oper- ates to the cost of insurance by simply extinguishing lower new, cannot meet the plaintiff causes of action where
those qualifi- expert witness assessing for heightened, standard and cations. widely publicized to a response Act
The MCARE was included an Pennsylvania, which health care crisis perceived malprac- practitioners of medical part fear on the alleged resulting some unaffordable becoming tice insurance was in the Commonwealth. practice to leave opting medical doctors To response. part legislative integral 512 is an Section generally the plaintiff malpractice, a case of medical prove the tort elements concerning produce expert must v. Plumsteadville Quinby breach, causation. duty, Inc., Practice, 1070-71 Family omitted). (2006) (citation plaintiffs 512 makes the experts narrowing the class more difficult burden perceived The causes may turn.2 plaintiff whom mul- complicated crisis are insurance medical the issue were ti-faceted, surrounding debates public and the heated, lawyers, politicians, practitioners, *19 blame. apportioning off and squaring companies insurance the judice in the case sub is not whether The issue for decision Act balanced properly the MCARE response represented but whether presented, issues policy resolved the difficult medical mal- existing effect on 512 has a substantive Section existing to cases would application such that practice litigation, view, 512 has such my Section unlawfully be retroactive.3 Comment, The New Checking Doctor's Credentials: Double 2. Cf. 661, MCARE, 67 U. Pitt. L.Rev. Expert Statute Medical Qualification of ("At (2006) skyrocketing passage, Act’s] time of MCARE [the 665-66 recognized widely health care premiums spawned had a insurance narrow the Pennsylvania.... 512 is intended to within Section crisis admissibility limiting qualified experts, with the result of field of actions.”). The lower courts testimony expert in medical significant the MCARE Act are have reviewed sections of effect of the of the agreement with the commentator’s assessment 671, (Pa.Su See, Rosenthal, e.g., 675 provision. Gartland v. Associates, P.C., Surgical 2004 Medical and per.2004); Amato v. Centre Fisher, 1987427, (Pa.Com.Pl.2004); 67 Pa. D. & C.4th Weiner v. WL *3 Small, 225, 1, (Pa.Com.Pl.2004); 235 Spotts 61 Pa. D. & C.4th (Pa.Com.Pl.2003). authority challenge of the appellant I note that does should area, existing Assembly legislate in the face of the in this General below, Judge applica- an effect. As Johnson noted retroactive 512 of the Act recasts the “effectively tion of Section entitlement prove standard must their plaintiffs which of action” and ‘raises “effectively to relief on vested cause the bar’ on the character of of a proof required plaintiff Wexler, 847 A.2d at right.” vindicate substantive (citations omitted). (Johnson, J., Therefore, dissenting) below, like the dissent I conclude that this portion would is not Act legislation simply “procedural.” The MCARE rejects and of common displaces explicating centuries law standard for assessing expert testimony, adopts new insulating standard which has the effect of medical profession- view, als from certain causes of action. In 512 has my which, a retroactive effect in the absence of authori- legislative same, zation for permitted cannot be in this operate unfairly case. otherwise, Majority
The holds agreeing with “that appellees adjustment standard at evidentiary hand relative to trial, a future albeit of an action as of pending the time of the adjustment, should not be applica- construed as a retroactive tion.” Majority Op. at at Majority A.2d 978. The elaborates “that the delineation of requirements governing the presentation unduly that are not burdensome rights does not alter vested parties give effect, material antecedent events a different legal assuming the affordance of time for adequate preparation adjust- Id., ment.” at 928 A.2d at Majority 979. The continues that Section 512 may apply retroactively because there is no “vested entitlement under Pennsylvania common to pres- law ent expert testimony in a malpractice action a medical against doctor from a witness who does not possess unrestricted Id., physician’s license.” at at 979. A.2d *20 Respectfully, I significant believe in change malpractice actions effected Section accurately de- 512— represented by Pennsylvania
structure
Rules of Evidence and the
prerogative
Supreme
constitutional
prescribe general
of the
Court to
governing practice, procedure
rules
and the conduct of all courts. See
V, 10(a).
Pa. Const. Art.
in
shift
the eviden-
as a “seismic
the’ dissent below
scribed
and fatal to the
cases”
malpractice
of medical
landscape
tiary
Wexler,
(Johnson, J.,
at 111
here,
cause
plaintiffs
existing
application
that retroactive
such
dissenting)—is
Indeed,
burden
heightened
unduly
is
burdensome.
cases
the standard.
reworking
in
point
legislative
the exact
was
change
of the
effect
Furthermore,
general
aside from
even
this case
cases,
history of
procedural
all
upon
512 here was
application
the retroactive
shows
burdensome,
appellant
unfairly deprived
oppressively'
adjustment.”
preparation
time for
“adequate
3, 1999, and
on November
complaint
filed her
Appellant
in
report
July
expert
Dr. Lazar’s
witness
timely submitted
16, 2002. On
for December
A trial date was scheduled
trial and
27, 2002,
than one month before
less
November
after
the effective date
six months
approximately
in limine.
Act,
Following
filed a motion
appellees
MCARE
to secure a
a continuance
requested
filing, appellant
appellees’
12/17/02,
N.T.,
at 3.
denied.
request
but the
was
expert,
new
17, 2002,
already impaneled,
a jury
December
On
camera conference.
began
The court
court held an trial
in limine. Fol-
motion
by granting appellee’s
the conference
the court.
allowed to address
ruling,
counsel was
lowing
“the late
upon
prejudice premised
argued
counsel
Appellant’s
limine],
includes reference
which
[in
of the motion
filing
Act,
noticed was
as Your Honor
which
the new MCARE
Id.,
responded unequivo-
The court
at 22.
May.”
enacted
decision on
basing
it
not
its
cally that
was
it
basing
upon
I am not
make the record.
“Let me
standard:
Act,
it’s based
enacted known as MCARE
the legislation
legislation
in this area....
[T]he
common law
upon
Id.
granted
The court
then
my
decision.”
indicative
limine pursuant
to the common law
motion appellees’
standard,
testimony,
Dr. Lazar’s
barred
expert judgment due
summary
motion for
appellees’
granted
witness.
competent expert
to offer another
failure
appellant’s
court
and the trial
appealed,
only
appellant
It
after
was
trial
Rule
that the
Pa.R.A.P.
Opinion
its
under
issued
*21
on the
primarily
based
to
its decision
attempted
support
court
The Superior
standard.
qualification
Act expert
MOARE
the
proceedings
the
charitably described
majority
Court
Wexler,
irregularity,”
marked by “procedural
trial court as
bluntly recognized
more
Judge
at
Johnson
A.2d
while
any opportu-
parties
the
“effectively deprived
trial court
Act’s]
to
responsive
[the
a record
nity
develop
to
Thus,
J.,
(Johnson,
dissenting).
at 109
Id.
provisions.”
expert on the eve
expelled appellant’s
in this case
trial court
continuance,
trial,
justified
then later
request
her
for a
refused
never had an
appellant
a standard
ruling premised upon
here, insulating the trial
to
On the facts
satisfy.
opportunity
Act
of the MCARE
ruling premised upon application
judge’s
burdensome.
oppressingly
standard is
admissibility
appellant’s
to the
Turning
question
law,
I
question
under the common
a
would
expert testimony
standard cannot
given my
reach
conclusion
the MCARE
here, I
is entitled to
lawfully apply
appellant
would find that
law,
“an
relief. At common
is admissible as
expert
is
related to
jury
subject
distinctly
aid to the
when the
matter
science,
or
occupation beyond
knowledge
experi-
a
skill or
Auker,
average layman.”
ence of
Commonwealth
(1996) (citation omitted).
Pa.
When
(as
case),
is
it
is in this
expert testimony
appropriate
certainly
if he has
reasonable
qualified
testify
any
a
is
to
witness
subject
on the
under
pretension
specialized knowledge
to
Tavern,
Miller v. Brass Rail
For the I foregoing dissent. respectfully Justice BAER and join opinion. Justice BALDWIN
LANCASTER Era, Brownstein, Lancaster New Oscar Lee Bender, Respondents. Arthur Supreme Pennsylvania. Court of
July *23 ORDER PER CURIAM.
The Petition for of Appeal Allowance The GRANTED. Superior Court’s affirming order grant summary judg- ment is REVERSED. See Weaver v. Lancaster Newspapers, Inc., Brownstein, Intelligencer Journal and (2007). A.2d This case is REMANDED to the trial court. Jurisdiction relinquished. Dr. notes