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Supreme Court of Pennsylvania Holds Medical Oncologist is Qualified to Render Standard of Care Opinions Against Otolaryngologist and Radiation Oncologist Under MCARE Act

In Vicari v. Spiegel, M.D., et al., 605 Pa. 381, 989 A.2d 1277 (2010), the Supreme Court of Pennsylvania held that a medical oncologist was qualified under the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. sec. 1303.512 (“the Act”), to render standard of care opinions against a board-certified otolaryngologist and a board-certified radiation oncologist with respect to the specific care alleged to have been negligent.

In Vicari, the plaintiff brought suit against a board-certified otolaryngologist and a board-certified radiation oncologist, asserting that they deviated from the applicable standard of care in treating the plaintiff’s decedent for tongue cancer. Specifically, the plaintiff maintained that the defendants breached the standard of care by failing to discuss the option of chemotherapy with the decedent and failing to refer the decedent to a medical oncologist for this purpose. The plaintiff contended that the defendants’ negligence caused the decedent’s tongue cancer to metastasize, which resulted in her death.

To support his claims against the defendants, the plaintiff presented the expert testimony of a board-certified medical oncologist who had served on several tumor boards, had treated head and neck cancer patients for more than thirty years, and had conducted clinical studies designed to test new cancer drugs and treatments for more than thirty years. However, the trial court struck the medical oncologist’s expert testimony on the grounds that he was incompetent under the Act to testify against the defendants regarding the applicable standard of care because he was not board-certified in the same field as either of the defendant physicians. Because the plaintiff could not produce any expert testimony against the defendants after the medical oncologist’s testimony was stricken, the trial court subsequently entered a compulsory nonsuit in the defendants’ favor. The plaintiff later filed a motion to remove the nonsuit, but the trial court denied the motion. The plaintiff then appealed the matter to the Superior Court of Pennsylvania.

The Superior Court reversed the trial court’s order which denied the plaintiff’s motion to remove the nonsuit after concluding that the medical oncology expert was indeed qualified to testify regarding whether the defendants breached the standard of care by failing to discuss the option of chemotherapy with the decedent and failing to refer the decedent to a medical oncologist. In reaching this conclusion, the Superior Court held that the trial court committed an error of law by misconstruing the Act’s expert qualification requirements. Accordingly, the Superior Court remanded this case to the trial court for a new trial. The defendants then filed petitions for allowance of appeal to the Supreme Court, which were granted.

The Supreme Court affirmed the Superior Court’s order and opinion after concluding that the plaintiff’s medical oncology expert was qualified under the Act to offer opinions regarding the standard of care for the specific care at issue. In reaching this decision, the Supreme Court acknowledged that the General Assembly intended the MCARE Act to create a more stringent standard for the admissibility of medical expert testimony in medical malpractice actions by imposing additional requirements than those that existed under common law. Specifically, the Supreme Court observed that the Act generally requires a plaintiff’s expert witness who is called to testify on the applicable standard of care to 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. The Supreme Court also noted that, if the defendant physician is board-certified, the Act typically requires a plaintiff’s expert to be certified by the same or a similar board before he can offer opinions regarding whether the defendant breached the standard of care. However, the Supreme Court then stressed that the Act allows trial courts to waive the same subspecialty and same board-certification requirements if the trial judge determines that an expert witness has sufficient training, experience and knowledge to testify regarding the applicable standard of care as a result of active involvement in the defendant physician’s subspecialty or a related field of medicine.

With these principles in mind, the Supreme Court examined the trial court’s reasons for striking the expert testimony of the plaintiff’s medical oncology expert and concluded that it did so based “on the misconception that the MCARE Act mandates that, if the defendant physician is board-certified, then the testifying expert must be board-certified by the same board.” The Supreme Court then reviewed the medical oncology expert’s professional qualifications and determined that he was clearly qualified to testify against defendants “as to the specific care at issue.” The Supreme Court noted that the medical oncology expert was not asked to testify regarding whether the otolaryngologist breached the standard of care in performing surgery on the decedent or whether the radiation oncologist breached the standard of care in administering radiation therapy to the patient. Rather, the medical oncology expert was asked to testify regarding whether the defendants breached the standard of care in failing to recommend chemotherapy to the decedent or to refer the patient to a medical oncologist. The Supreme Court concluded that the medical oncology expert was certainly qualified to testify on this issue in light of his significant experience on tumor boards, his thirty plus years of clinical practice in treating head and neck cancer patients, and his other teaching and clinical experience.

Moreover, the Supreme Court expressly held that a determination that an expert practices in a field of medicine that is sufficiently related to the defendant physician’s field to allow the expert to offer standard of care testimony against the defendant cannot be established in a broad and general sense that will apply to all scenarios and claims. Rather, according to the Court, the relatedness of one field of medicine to another, under the MCARE Act, can only be considered as to “the specific care at issue.” The Court explained that “[t]wo fields of medicine may be ‘related’ with respect to certain specific issues of care, but unrelated with respect to other specific issues of care.” Therefore, the Court held that a determination of whether a medical expert is qualified to testify on the issue of standard of care against a defendant physician who practices in a different field of medicine must be made on a case by case basis. Consequently, the Supreme Court affirmed the Superior Court’s order and opinion which reversed the entry of nonsuit in the defendants’ favor and remanded the matter to the lower court for a new trial.


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