Vicari v. Spiegel

989 A.2d 1277, 605 Pa. 381, 2010 Pa. LEXIS 525
CourtSupreme Court of Pennsylvania
DecidedMarch 25, 2010
Docket17 EAP 2009, No. 18 EAP 2009
StatusPublished
Cited by27 cases

This text of 989 A.2d 1277 (Vicari v. Spiegel) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vicari v. Spiegel, 989 A.2d 1277, 605 Pa. 381, 2010 Pa. LEXIS 525 (Pa. 2010).

Opinions

OPINION

Justice McCAFFERY.

The issue before the Court in this case concerns the qualifications an expert witness must possess in order to testify regarding the standard of care in a medical professional liability case against a physician, pursuant to the Medical Care Availability and Reduction of Error (“MCARE”) Act.1

Joseph Vicari (“Appellee”) brought a medical professional liability claim against Joseph R. Spiegel, M.D.; Pramila Rani Anne, M.D.; and Jefferson Radiation Oncology Associates (collectively “Appellants”) after Appellee’s wife, Barbara Vicari, died from metastatic tongue cancer on April 1, 2002, at 39 years of age.2 Dr. Spiegel, an otolaryngologist, had surgically removed Mrs. Vicari’s tumor on March 6, 2001, and then had continued to serve as the primary physician responsible for management of her cancer. Dr. Anne, a radiation oncologist, had treated Mrs. Vicari post-surgically with a course of radiation therapy. The gravamen of Appellee’s malpractice claim against these two physicians was that they had never discussed with Mrs. Vicari the possibility of post-surgical followup treatment with chemotherapy, nor referred her to a medical oncologist for such a discussion. In Appellee’s view, this omission was particularly egregious because the surgical pathology report on the specimens removed during Mrs. Vicari’s [384]*384surgery suggested that she had a high risk of tumor recurrence and metastasis.3

At a jury trial presided over by the Honorable Esther R. Sylvester, Appellee presented testimony from two expert witnesses: Ronald H. Blum, M.D., a medical oncologist, and Peter Berman, M.D., an otolaryngologist. Appellee also presented excerpts from Dr. Spiegel’s deposition testimony, as well as testimony by Appellee himself and the Vicaris’ two children. Appellee then rested his case just prior to the lunch recess on May 2, 2006.

Immediately after the recess, Appellee’s counsel made an oral motion to reopen his case because he was unsure whether Dr. Berman had used the words “to a reasonable degree of medical certainty” during his expert opinion testimony. Notes of Testimony (“N.T.”), 5/2/06, at 101-02. Appellants’ counsel objected to Appellee’s motion to reopen, and following argument, the court denied Appellee’s motion and struck Dr. Berman’s testimony. Id. at 111, 121.

Counsel for Dr. Spiegel then made an oral motion for compulsory nonsuit, arguing that Dr. Blum was not competent to testify against Dr. Spiegel or Dr. Anne as to the applicable standard of care, because Dr. Blum was not board certified in the same field as either of the defendant physicians.4 Id. at 112-13, 127. Counsel further contended that the lack of common board certification between Dr. Blum and either Dr. Spiegel or Dr. Anne was “a threshold question which is kind of a black and white issue” and a “fatal flaw in the case.” Id. at 113. Counsel for Dr. Anne joined in the oral motion. Id. at 120. Following argument, the trial court accepted Appellants’ [385]*385contention that Dr. Blum was not competent to testify and struck his testimony as well. With the testimony of both experts stricken, the trial court granted Appellants’ motion for nonsuit.5 Id. at 131. Appellee’s motion to remove the nonsuit was denied, and the trial court entered judgment in favor of Appellants.

Appellee appealed to the Superior Court, arguing that the trial court had abused its discretion both by striking Dr. Berman’s testimony because it was allegedly not rendered to the requisite degree of medical certainty, as well as by striking Dr. Blum’s testimony because, under the MOARE Act, he allegedly did not qualify as an expert witness as to standard of care. Vicari v. Spiegel, 936 A.2d 503, 508-09 (Pa.Super.2007).6 The Superior Court reversed and remanded for a new trial. Id. at 515. With regard to Dr. Berman’s opinion testimony that Appellants’ failure to refer Mrs. Vicari for chemotherapy [386]*386had increased her risk for metastasis, the Superior Court held that, taken in its entirety, the testimony had been rendered to a reasonable degree of medical certainty. Id. at 511. With regard to Dr. Blum, the Superior Court concluded that, under the MCARE Act, he was indeed qualified to testify that Appellants had deviated from the applicable standard of care by failing to discuss with Mrs. Vicari the option of chemotherapy and failing to refer her to a medical oncologist for this purpose. Id. at 515.

Appellants then sought allowance for appeal from this Court, challenging the propriety of the Superior Court’s holding that the trial court had committed error when it had found Dr. Blum unqualified to testify against them.7 We granted allowance of appeal on the following issue:

Whether [Appellee’s] medical oncology expert [Dr. Blum] was qualified to render standard of care opinions against an otolaryngologist and radiation oncologist under Section 512 of the Medical Care Availability and Reduction of Error Act. 40 P.S. § 1303.512.

Vicari v. Spiegel, 601 Pa. 375, 973 A.2d 408-09 (2009).

With passage of the MCARE Act, the General Assembly created a more stringent standard for admissibility of medical expert testimony in a medical malpractice action by the imposition of specific additional requirements not present in the common law standard. Gbur v. Golio, 600 Pa. 57, 963 A.2d 443, 452 (2009) (Opinion Announcing the Judgment of the Court); id. at 464 (Greenspan, J., concurring) (agreeing that, with the MCARE Act, the General Assembly raised the standards for an expert witness testifying to a physician’s standard of care, but also noting that the statute permitted waiver of certain requirements under appropriate circumstances); Wexler v. Hecht, 593 Pa. 118, 928 A.2d 973, 986 (2007) (Castille, J., dissenting). The MCARE Act’s provisions as to the requisite qualifications for an expert witness testifying in a medical malpractice action against a physician are [387]*387found in Section 512, which provides, in relevant part, as follows:

(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.
(c) Standard of care.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Galli, N. v. Odenigbo, V.
Superior Court of Pennsylvania, 2025
Commonwealth v. Walters, P., Aplt.
Supreme Court of Pennsylvania, 2024
Larsen, C. v. Wayne Memorial Hospital
Superior Court of Pennsylvania, 2024
Scioto Land Co. v. Knauff
2023 Ohio 4821 (Ohio Court of Appeals, 2023)
Parker v. Correctional Care, Inc.
M.D. Pennsylvania, 2023
BOYLE v. United States
E.D. Pennsylvania, 2022
Shober, R.B. v. St. Joseph Medical Center
Superior Court of Pennsylvania, 2020
Quivers, S. v. Manzetti, G.
Superior Court of Pennsylvania, 2019
Glasgow, A. v. Ducan, I.
Superior Court of Pennsylvania, 2018
Tong-Summerford, A. v. Abington Mem. Hosp.
Superior Court of Pennsylvania, 2018
Rutyna, A. v. Schweers, W.
Superior Court of Pennsylvania, 2017
Price, R. v. Catanzariti, A.
Superior Court of Pennsylvania, 2016
Commonwealth v. Fant, R., Aplt.
146 A.3d 1254 (Supreme Court of Pennsylvania, 2016)
Frey, M. v. Potorski, R., M.D.
145 A.3d 1171 (Superior Court of Pennsylvania, 2016)
Estate of Goldberg ex rel. Goldberg v. Nimoityn
193 F. Supp. 3d 482 (E.D. Pennsylvania, 2016)
Abramowich, P. v. Albert, A.
Superior Court of Pennsylvania, 2015
Asiello v. Bratton
45 Pa. D. & C.5th 449 (Lycoming County Court of Common Pleas, 2015)
Scheer, B. v. Burke, J.
Superior Court of Pennsylvania, 2015
Pellecia v. Chen
45 Pa. D. & C.5th 270 (Monroe County Court of Common Pleas, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
989 A.2d 1277, 605 Pa. 381, 2010 Pa. LEXIS 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vicari-v-spiegel-pa-2010.