The opinion
J. A29004/15
2016 PA Super 76
ROULETTE PRICE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1886 WDA 2014
:
ALAN CATANZARITI, D.P.M. :
Appeal from the Judgment Entered October 21, 2014,
in the Court of Common Pleas of Allegheny County
Civil Division at No. GD 110001164
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED MARCH 30, 2016
Roulette Price appeals from the judgment entered October 21, 2014,
following the granting of a compulsory non-suit for the defendant/appellee,
Alan Catanzariti, D.P.M., in this medical malpractice liability action.1 The
trial court granted compulsory non-suit and dismissed the case after finding
that appellant’s proposed expert witness, Mark Robert Foster, M.D., a
1
Appellant purports to appeal from the October 17, 2014 order denying
post-trial motions. “Generally, an appeal will only be permitted from a final
order unless otherwise permitted by statute or rule of court.” Johnston the
Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 514 (Pa.Super.
1995). An appeal from an order denying post-trial motions is interlocutory.
Id.; Pa.R.A.P. 301(a), (c), and (d). An appeal to this court can only lie from
judgments entered subsequent to the trial court’s disposition of post-verdict
motions, not from the order denying post-trial motions. Id. We have
corrected the caption accordingly.
J. A29004/15
board-certified orthopedic surgeon, did not meet the qualification
requirements of the MCARE Act.2 After careful review, we reverse.
The trial court has summarized the history of this case, as well as
described its reasoning for excluding Dr. Foster’s testimony, in its opinion
filed on January 20, 2015, pursuant to Pa.R.A.P. 1925(a), set forth here in
its entirety:
Plaintiff has appealed from the judgment
entered in favor of Defendant by the Court in this
medical malpractice lawsuit. The court granted
Defendant’s Motion for Nonsuit following the
exclusion of the testimony of Plaintiff’s expert.
Plaintiff challenges on appeal the Court’s ruling
excluding the testimony of her expert. We believe
that Plaintiff’s expert was not qualified to render an
expert opinion on the facts and issues of this case.
Plaintiff’s lawsuit alleged that Defendant
improperly performed podiatric surgery, causing her
certain injuries. Defendant is a board-certified
podiatric surgeon. Plaintiff sought to present as an
expert in this matter a board-certified orthopedic
surgeon who had not performed surgery in over
eight years. Plaintiff’s expert, while an orthopedic
surgeon, is not and never has been[] a
board-certified podiatric surgeon.
The MCARE Act requires that an expert called
to testify on standard of care issues be board
certified by the same or similar board as the
Defendant, 40 P.S. §1303.512(c)(3). An expert
called to testify on the standard of care purportedly
not met must “...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...”, 40 P.S. §1303.512(c)(2).
2
The Medical Care Availability and Reduction of Error Act (“MCARE”), 40 P.S.
§ 1303.512.
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Whether a witness has been properly qualified as an
expert is vested in the discretion of the trial court,
Wexler v. Hecht, 847 A.2d 95, 98 (Pa.Super
2004).[3]
3
In Wexler, this court held that the plaintiff’s proposed expert,
Lawrence Lazar, D.P.M. (Doctor of Podiatric Medicine), could not testify
against the defendant, an orthopedic surgeon, where they are two different
fields of medicine. Id. at 100-101. We affirmed the trial court’s exclusion of
the podiatrist’s opinion using the common law standard for expert witnesses.
Id. Later in the opinion, in what has been criticized as dicta, see Herbert
v. Parkview Hospital, 854 A.2d 1285, 1291 (Pa.Super. 2004), appeal
denied, 872 A.2d 173 (Pa. 2005), this court also opined that the podiatrist’s
testimony would have been inadmissible under MCARE. Id. at 102-103.
The MCARE Act was enacted after the plaintiff’s complaint was filed and the
trial court expressly ruled that its decision excluding Dr. Lazar’s testimony
was not based on the MCARE Act. Id. at 101.
Our supreme court granted allocatur and affirmed on a different basis,
holding, first, that Section 512 applies at trials of medical malpractice
actions occurring after its effective date, assuming the affordance of
adequate time for preparation and adjustment; and second, that the MCARE
Act expressly distinguishes between physicians and podiatrists, and the
plaintiff’s expert, as a podiatrist, is not licensed as a physician to practice
medicine by the State Board of Medicine and is therefore unqualified under
the MCARE Act to provide opinion testimony concerning the applicable
standard of care. Wexler v. Hecht, 928 A.2d 973, 981-982 (Pa. 2007).
Our supreme court in Wexler found that Section 512 explicitly forbids
non-physicians from testifying as expert witnesses against
physician-defendants:
Although clearly there is some overlap in practical
application, it is evident from the panoply of
referenced legislation that the Legislature is well
aware of the clear and formal line of demarcation
between regulation of the practice of medicine
generally and regulation of the practice of podiatric
medicine. Thus, we find that the General Assembly’s
reference in Section 512(b)(1) to an expert
“possessing an unrestricted physician’s license to
practice medicine” unambiguously denotes a medical
doctor or osteopath licensed by a state board
appropriate to such practices. Further, since there is
no provision for waiver of this requirement relative
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It is clear that Plaintiff’s expert is not in the
same subspecialty as Defendant. The question thus
becomes whether the expert’s subspecialty has a
substantially similar standard of care for the care at
issue, or whether Plaintiff’s expert falls within one of
the exceptions listed in the above section. We
believe that Plaintiff cannot satisfy this requirement.
It is apparent that clinical orthopedics and
podiatric surgery are different subspecialties.
Plaintiff’s expert is not certified by the same boards
as Defendant. Defendant’s care was not outside his
specialty, thus making the exception listed in 40 P.S.
§1303.512(d) inapplicable. The second exception at
§1303.512(e) permits a court to waive the specialty
and board certification requirements where the
proffered expert has sufficient training, experience
and knowledge as a result of full-time teaching or
active involvement in the field where the expert
seeks to testify -- here podiatric surgery. It is clear
Plaintiff cannot satisfy this exception. Plaintiff’s
expert did not teach podiatry, does not perform
podiatric surgery and had not performed any surgery
in over eight years. The MCARE statu[t]e has
promulgated a five-year period in which the
proffered expert must have practiced. See Weiner
to expert testimony concerning the applicable
standard of care, see supra note 3, the common
pleas court appropriately concluded that Dr. Lazar
was unqualified, under the MCARE Act, to provide
evidence essential to the support of Appellant’s
action.
Id. at 981-982 (footnote omitted). Justice Castille filed a dissenting opinion
in which Justices Baer and Baldwin joined, opining that the MCARE Act is not
purely procedural and should not apply retroactively. Applying the more
lenient common law standard for admission of expert testimony,
Justice Castille would have held that Dr. Lazar had sufficient credentials to
testify as an expert witness about the procedure at issue (bunionectomy).
Id. at 988-989.
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v. Fisher, 871 A.2d 1283, 1286-87 ([Pa.Super.]
2005).
Plaintiff seeks to argue that her expert’s
specialty of an orthopedic surgeon is substantially
similar to podiatric surgery to allow testimony. The
Pennsylvania Superior Court in Wexler v. Hecht,
847 A.2d 95, 100 (2004), however, found that the
standard of care for an orthopedic surgeon is
substantially different from that of a podiatric
surgeon. A podiatric surgeon was thus not permitted
to offer expert testimony on the performance of an
orthopedic surgeon. We see no reason why the
converse should be permitted here.
Other Courts of Common Pleas have reached
similar conclusions. See Kling v. Waciuma, 2012
WL 5362590 (Lycoming Co. 2012), Carter v.
Davila, (Mercer Co. 2006, Reed, J.).
Plaintiff’s expert has not performed surgery in
over eight years and has apparently never performed
the podiatric surgery at issue here.[4] His practice at
present is in clinical orthopedics. There is nothing to
support a finding that his practice satisfies the
requirements and standards promulgated in MCARE.
He does not practice in the same subspecialty or one
with a substantially similar standard of care for the
type of surgery at issue in this case. He is not board
certified by the same or a similar board as
Defendant, and does not fit within any of the
4
Appellant’s specific surgery involved debridement of the Achilles tendon, a
right calcaneal exostectomy, and flexor hallucis longus (“FHL”) transfer.
(Notes of testimony, 6/2-3/14 at 145). Dr. Foster testified that while he
cannot recall having done just those three surgeries together as a single
procedure, he has performed each of them approximately 50 times. (Id. at
145-146, 160-161.) Dr. Foster also testified that orthopedic surgery
includes the subspecialty of the foot and ankle, and as part of the
examination for the Board of Orthopedic Surgery, he has studied each of
those procedures, i.e., debridement of the Achilles tendon, FHL tendon
transfers, and excision of the calcaneous. (Id. at 158-159.) So, to say that
Dr. Foster has never performed the podiatric surgery at issue in this case is
not supported by the record.
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exceptions that the Act provides. Accordingly, his
testimony was properly excluded and nonsuit was
appropriately entered in favor of Defendant.
Trial court opinion, 1/20/15 at 1-3.
On June 3, 2014, the trial court granted appellee’s motion to exclude
the testimony of Dr. Foster. The trial court also granted appellee’s motion
for compulsory nonsuit and dismissed the case with prejudice. A timely
motion for post-trial relief was filed on June 12, 2014, and denied on
October 17, 2014. Judgment was entered on October 21, 2014, in favor of
appellee and against appellant. A timely notice of appeal was filed on
November 14, 2014. Appellant complied with the trial court’s order to file a
concise statement of errors complained of on appeal pursuant to
Rule 1925(b), and the trial court filed an opinion.
Appellant has raised the following issue for this court’s review:
1. Whether the Lower Court committed an error
of law in excluding the testimony of Plaintiff’s
medical expert witness under the MCARE Act?
Appellant’s brief at 4.
Interpretation of the MCARE statute presents a question of law.
Wexler v. Hecht, 928 A.2d 973, 977 (Pa. 2007). Thus, our standard of
review is de novo and our scope of review is plenary. Anderson v.
McAfoos, 57 A.3d 1141 (Pa. 2012); Gbur v. Golio, 963 A.2d 443 (Pa.
2009); Hyrcza v. West Penn Allegheny Health Sys., Inc., 978 A.2d 961,
972 (Pa.Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009).
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The MCARE Act, Section 512, “Expert qualifications,” provides:
(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.
Provided, however, the court may
waive the requirements of this
subsection for an expert on a
matter other than the standard of
care if the court determines that
the expert is otherwise competent
to testify about medical or scientific
issues by virtue of education,
training or experience.
(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
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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).
(d) CARE OUTSIDE SPECIALTY.—A court may
waive the same subspecialty requirement for
an expert testifying on the standard of care for
the diagnosis or treatment of a condition if the
court determines that:
(1) the expert is trained in the
diagnosis or treatment of the
condition, as applicable; and
(2) the defendant physician
provided care for that condition
and such care was not within the
physician’s specialty or
competence.
(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
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applicable subspecialty or a related field of
medicine within the previous five-year time
period.
40 P.S. § 1303.512 (emphasis added). On its face, Section 512 applies only
to physician-defendants. Appellee, as a podiatrist, is not a physician as
that term is statutorily defined. See Wexler, 847 A.2d at 103.5 Appellee
concedes as much in his brief. (Appellee’s brief at 11-12 (distinguishing
between medical doctors and podiatrists).) As such, although this is a
professional liability claim necessitating a certificate of merit pursuant to
Pa.R.C.P. 1042.3, appellant is not required to meet the heightened standard
for admission of expert medical testimony under Section 512 of the MCARE
Act. Rather, the common law standard, i.e., that a witness is qualified to
testify if he has any reasonable pretension to specialized knowledge on the
subject under investigation, would apply. See Wexler, 847 A.2d at 105-
106 (Johnson, J. dissenting) (discussing Pennsylvania’s “relatively modest”
5
By statute, podiatrists are not “physicians.” See,
1 Pa.C.S.A. § 1991 (defining “physician” in relevant
part as a person licensed “to engage in the practice
of medicine and surgery in all its branches”); 63 P.S.
422.2 (defining “physician” as a “medical doctor” or
“doctor of osteopathy”; further defining “medical
doctor” as one who is licensed by the State Board of
Medicine); 63 P.S. § 42.1 et seq. (podiatrists are
licensed by the State Board of Podiatry); 40 P.S.
§ 1303.103 (distinguishing between physicians and
podiatrists in the definition of “health care
provider”).
Id.
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common law standard for admission of expert testimony). Certainly,
Dr. Foster, as a board-certified orthopedic surgeon, would meet that
standard. Wexler, 928 A.2d at 988-989 n.7 (Castille, J., dissenting)
(orthopedist may testify as to standard of care of podiatrist performing foot
surgery). The fact that Dr. Foster has not performed surgery in eight years,
or that he specializes in the spine rather than the foot, goes to the weight of
his testimony, not its admissibility, and is for the jury to consider.6
Reversed. Remanded for new trial. Jurisdiction relinquished.
Musmanno, J. joins the Opinion.
Bowes, J. files a Concurring and Dissenting Opinion.
6
Appellee acknowledges, in his brief, that “An argument could be made that
the expert standards under MCARE, because it expressly applies to
“physicians,” do not establish the standards for expert competence in
podiatric malpractice claims.” (Appellee’s brief at 27 n.12.) However,
appellee asserts that any such argument is waived and cannot be considered
by this court because appellant never raised it in the trial court or on appeal.
(Id.) We disagree. As stated above, the issue of whether Section 512
applies to bar Dr. Foster’s testimony is purely one of law, and our scope of
review is plenary. By its express terms, Section 512 simply does not apply
to this case, where the defendant is not a physician. We will not be
constrained by issue preservation requirements where the statute itself is
wholly irrelevant and inapplicable to the case at bar. Furthermore, for
allocatur purposes, we would find that Dr. Foster’s testimony was
admissible under Subsection 512(e), where he testified he has performed
similar surgeries over 50 times in his career and continues to maintain an
active clinical practice in a related field of medicine, i.e., orthopedics which
includes the foot and ankle.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2016
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