Scott Cooper April 21st, 2010
Below is the link to a PA Supreme Court decision. In Vicari v. Spiegel, ___ A.2d ___ (Pa. March 25, 2010), the Court reversed a Philadelphia County Court decision and allowed a patient to continue their claim against two doctors.
Ms. Vicari died from metastatic tongue cancer after she was not given the opportunity to have post surgical chemotherapy. Her husband sued his wife’s otolaryngologist and radiation oncologist. In the trial court, Vicari presented testimony from an otolaryngologist, but the testimony was stricken because of a failure to offer the opinion within a reasonable degree of medical certainty. Also, the Plaintiff, Vicari, offered the testimony of a medical oncologist. The trial court then struck this expert testimony as well, because the medical oncologist’s board certification was different than either of the two defendants. This ended the trial, as Mr. Vicari was left with no expert to say Defendant doctors failed to meet the standard of care. Vicari’s attorney appealed.
On appeal, the question was whether under MCARE, the medical oncologist qualified as an expert. see 40 P.S. Section 1303.512. The Pennsylvania Supreme Court summarized this section of the MCARE act, and held that when an expert testifies against a doctor concerning Defendant doctor’s standard of care to determine medical malpractice, the witness must be:
•a licensed and active physician, or retired within the last five years;
•substantially familiar with the standard of care;
•practice in the same subspecialty, or in a subspecialty with a substantially similar standard of care; and
•if defendant doctor is board certified, then the expert must be certified by the same or similar board; or
•if the expert is not in the same subspecialty or certified by the same board, then the witness may testify if the Court determines he or she has a sufficient training, experience, and knowledge in the standard of care because the expert witness has active involvement in defendant doctor’s subspecialty or in a related field of medicine
Here, the very narrow question of whether Ms. Vicari should have been offered the opportunity to have post surgical chemotherapy, was within a medical oncologist’s area of competency, despite the undisputed fact that his board certification is different than an otolaryngologist or a radiation oncologist. In holding the medical oncologist could testify, the Court was clear that relatedness of subspecialty coud not be general, and that the relatedness must be with regard to the specific care at issue. The Court further inquired, after determining relatedness, into the expert’s training, experience, and knowledge, before allowing him to testify.
In this doctor negligence case, where Ms. Vicari’s doctors failed to offer her a treatment for cancer, the Pennsylvania Supreme Court allowed a medical oncology expert to testify to what a radiation oncologist and an otolaryngologist should have offered their patient as a treatment option. A SCHMIDT KRAMER PC injury lawyer who handles medical malpractice cases can help you determine if the Supreme Court’s decision will impact your situation.
http://www.pacourts.us/OpPosting/Supreme/out/J-94AB-2009mo.pdf
Case Summary by:
Joe Chapman, Esquire
SCHMIDT KRAMER PC attorney
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