Wexler v. Hecht

847 A.2d 95, 2004 Pa. Super. 95, 2004 Pa. Super. LEXIS 322

• Court: Superior Court of Pennsylvania
• Decided: April 5, 2004
• Status: Published

Opinions

OPINION BY LALLY-GREEN, J.:

¶ 1 In this medical malpractice action, Appellant, Beverly Wexler, appeals from the summary judgment order entered on December 18, 2002. We affirm.

¶ 2 A brief summary of the factual and procedural history of the case is as follows. On January 18,1998, Appellant underwent bunion-removal surgery and related procedures. Defendant/Appellee, Dr. Paul J. Hecht, performed the operation. Dr. Hecht is a board-certified orthopedic surgeon.

¶ 3 Appellant complained that Dr. Hecht’s surgery caused her foot condition to worsen.¹ On November 3, 1999, Appellant filed a medical malpractice action against Dr. Hecht.

¶ 4 The case proceeded through discovery, including the production of expert reports. Appellant presented an expert report from Dr. Lawrence Lazar, D.P.M. (Doctor of Podiatric Medicine). Dr. Lazar is a podiatrist, and is licensed to practice in the District of Columbia, Maryland, and North Carolina. Dr. Lazar is not a licensed medical doctor, an M.D., or an orthopedic surgeon, but he is certified by the American Board of Podiatric Surgery.

¶ 5 Dr. Lazar’s report explains how Dr. Hecht’s treatment deviated from the “normal standard of care” in many respects. The report, however, does not further identify whether the “normal standard of care” is the standard of podiatric surgeons like himself, or orthopedic surgeons like Dr. Hecht. Similarly, Dr. Lazar references “the scientific literature” and unnamed medical textbooks to support his conclusion that Dr. Hecht deviated from the “normal standard of care.” Again, however, Dr. Lazar does not indicate whether these texts set forth the standards relating to podiatric surgeons or to orthopedic surgeons.

¶ 6 Dr. Hecht filed a motion in limine to exclude Dr. Lazar’s expert report. Dr. Hecht argued that Dr. Lazar was unqualified to provide an expert opinion under both the common law and the newly enacted Medical Care Availability and Reduction of Error Act (“MCARE Act”), 40 P.S. § 1303.101 et seq.

¶ 7 The trial court held a hearing on December 17, 2002. The court concluded that Dr. Lazar lacked the sufficient background, training, and experience to render a competent expert opinion under the common law. The court expressly ruled that its decision was not based on the MCARE Act. N.T., 12/17/2002, at 22.

¶ 8 At the end of the hearing, the court granted Dr. Heeht’s motion in limine. Because Appellant now lacked an expert to support her medical malpractice action, Dr. Hecht made an oral motion for summary judgment. The court granted this motion as well. The court docketed these orders on December 18, 2002. This timely appeal followed.²

¶ 9 Appellant raises three issues on appeal:

Did the trial court err and abuse its discretion in finding that the Appellant’s medical expert, a Podiatrist, was not qualified to testify as an expert against an Orthopedist in a medical malpractice case where:

A.The specialties overlap in practice, the podiatrist knows, is aware and can testify as to the standard of care in the field of Orthopedics based on his own training and education, and the subsequent treating physician who did two repair surgeries on the Appellant is a Podiatrist?

B. Where under the MCARE Act § 1303.512(c)(1),(2),(3), the Appellant’s Podiatrist Expert practices in a sub-specialty which has a substantially similar standard of care as the defendant orthopedist and is board-certified in a similar approved board as the defendant?

C. The trial court erred and abused its discretion by failing to permit Appellant’s expert to testify regarding his qualifications at the Motion in Limine Hearing despite Appellant’s urging and request to hear from the expert in person?

Appellant’s Brief at 4.

¶ 10 First, Appellant argues that the trial court abused its discretion by excluding Dr. Lazar’s opinion under common law. Our standard of review is as follows:

“Whether a witness has been properly qualified to give expert witness testimony is vested in the discretion of the trial court.” West Philadelphia Therapy Center v. Erie Ins. Group, 2000 PA Super 94, 751 A.2d 1166, 1167 (Pa.Super.2000) (citation omitted). It is well settled in Pennsylvania that the standard for qualification of an expert witness is a liberal one. Rauch v. Mike-Mayer, 2001 PA Super 270, 783 A.2d 815 (Pa.Super.2001). When determining whether a witness is qualified as an expert the court is to examine whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. Miller v. Brass Rail Tavern, 541 Pa. 474, 664 A.2d 525 (1995).

George v. Ellis, 2003 PA Super 121, 820 A.2d 815, 817 (Pa.Super.2003).

The determination of whether a witness is a qualified expert involves two inquiries:

When a witness is offered as an expert, the first question the trial court should ask is whether the subject on which the witness will express an opinion is ‘so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman.’ ... If the subject is of this sort, the next question the court should ask is whether the witness has ‘sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.’

McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533 A.2d 436, 440 (Pa.Super.1987), appeal denied, 520 Pa. 589, 551 A.2d 215 (1988), and by Petition of Merck, Sharp & Dohme, 520 Pa. 589, 551 A.2d 216 (Pa.1988) (quoting Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408, 415 (Pa.Super.1984)).

Kovalev v. Sowell, 2003 PA Super 432, ¶ 7, 839 A.2d 359.

¶ 11 It is undisputed that expert testimony was necessary both to establish the standard of care for the surgical procedure at issue, and to establish that Dr. Hecht breached that standard of care. Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (2003) (opinion announcing the judgment of the court), citing, Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 (1997). It is also undisputed that the relevant standard of care is the standard applicable to orthopedic surgeons, because the procedure at issue was performed by an orthopedic surgeon. See, Yacoub v. Lehigh Valley Medical Assocs., P.C., 805 A.2d 579, 592 (Pa.Super.2002). The question becomes whether Dr. Lazar was qualified to render an opinion as to the standard of care employed by orthopedic surgeons.

¶ 12 Generally, “[i]n the area of medicine, specialties sometimes overlap and a practitioner may be knowledgeable in more than one field. Different doctors will have different qualifications, some doctors being more qualified than others to testify about certain medical practices.” B.K. v. Chambersburg Hospital, 2003 PA Super 386, ¶ 10, 834 A.2d 1178, quoting, Bindschusz v. Phillips, 771 A.2d 803, 809 (Pa.Super.2001). Where the expert is qualified to testify, the weight of that testimony is for the jury to determine. Id.

¶ 13 On the other hand, medical experts may be unqualified to testify about the standards of care applicable in certain other medical fields. In other words, “it may appear that the scope of the witness’s experience and education may embrace the subject in question in a general way, but the subject may be so specialized that even so, the witness will not be qualified to testify.” Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408, 419 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985); see also, Kovalev, 2003 PA Super 432, ¶ 10, 839 A.2d 359 (doctor with general medical training was unqualified to testify about his orthopedic injuries); Yacoub, 805 A.2d at 592 (plaintiff failed to demonstrate that neurosurgeon was qualified to render expert opinion about standard of care appropriate to internal medicine or special unit care nursing); Dierolf v. Slade, 399 Pa.Super. 9, 581 A.2d 649, 651 (1990) (orthodontist lacked training and experience necessary to present expert testimony regarding oral surgery); McDaniel v. Merck, Sharp, & Dohme, 367 Pa.Super. 600, 533 A.2d 436, 441-442 (1987) (expert in anesthetic drugs lacked training and experience to testify about whether continued use of an antibiotic drug caused death).

¶ 14 Such is the ease here. We recognize that Dr. Lazar is a podiatrist who is certified by the American Board of Podia-tric Surgery. As such, he is undoubtedly an expert in the general field of foot surgery. On the other hand, the trial court found that Dr. Lazar lacked the training and experience necessary to opine about the standard of care relevant to an orthopedic surgeon performing the particular procedure at issue. Specifically, the court noted that Dr. Lazar does not have an M.D., and therefore has not specialized in the field of orthopedic surgery. Trial Court Opinion, 8/13/2003, at 9, 12-14. By statute, the field of podiatric medicine is distinct from the field of general medicine that produces an M.D. Id. at 14-15. The training for podiatry is limited to the foot, while the training for general medicine includes the body as a whole. Similarly, the training for orthopedic surgery involves consideration of the entire skeletal system, rather than just the foot. Id. at 16. The trial court concluded:

The scope of podiatry, in this case, did not rise to a legally competent comprehension of an orthopedic manner of pre-operatively thinking about and approaching the upcoming surgery or an orthopedic understanding of post-surgical care and treatment. Dr. Lazar provided no evidence that he was significantly familiar with an orthopedist’s distinctive holistic modality of performing surgery or with an orthopedist’s holistic post-surgical standards of care and treatment. Dr. Lazar never established that the norms by which he judged Dr. Hecht’s surgery on and subsequent treatment and care of [Appellant] were norms applicable to orthopedic surgeons.

Id. at 13-14.

¶ 15 We agree with the trial court. Dr. Lazar’s report never makes reference to an orthopedic surgeon’s standard of care. Because Dr. Lazar referred only to a “normal” standard of care, the trial court reasonably concluded that Dr. Lazar was referring to a podiatrist’s standard of care, rather than an orthopedic surgeon’s standard of care. Finally, and most importantly, Dr. Lazar did not indicate in his report that this unspecified “normal” standard of care was indeed universal. The trial court explained:

This Court cannot assume that there is a universal standard of care observed by surgeons of every system or school of surgery. Dr. Lazar did not identify even minimally a standard of care common to all surgeons, podiatrists and orthopedists alike. Nor did he provide evidence of where a podiatric approach and an orthopedic approach would coincide, or why an orthopedic surgeon should adhere to the standards of care appropriate to the subspecialty of podia-tric surgery.

Id. at 12.

¶ 16 Our review of the record reflects no abuse ‘of discretion in the trial court’s analysis. Appellant failed to demonstrate that Dr. Lazar’s training and experience was sufficient for him to render a competent opinion regarding the applicable standard of care. Moreover, the report itself did not indicate that Dr. Lazar was familiar with the proper standard of care. Appellant’s first claim lacks merit.

¶ 17 Our esteemed colleague, Judge Johnson, would hold that Dr. Lazar should be deemed competent to testify as an expert (subject to future disqualification) because the general subject matter of the procedure at issue was indisputably within his area of expertise. While the Dissent’s position is vigorous and well-argued, we decline to adopt it for several reasons. First, as noted further infra, Dr. Lazar criticized far more than the way in which Dr. Hecht performed the bunion-removal surgery. Rather, Dr. Lazar criticized Dr. Hecht’s entire follow-up program, including his use of a new type of absorbable internal fixation device. Thus, even assuming arguendo that there is indeed a single, universal standard of care for performing a bunion removal surgery (a proposition which Appellant failed to establish), the possibility is great that different specialists would have different standards of care relating to post-operative treatment.

¶ 18 Second, in our view, the relevant standard of care pertains not only to the procedure being performed, but also pertains closely to the qualifications of the person performing that procedure.³ We can conceive of many reasons (e.g., treatment philosophy, prior training, or expectations of the field), that a specialist in one area would hold himself or herself to a different standard of care from a specialist in another area, even as to the same procedure. In other words, one specialist’s “normal” standard of care may be abnormally conservative, abnormally risky, or insufficiently proven to be effective in the eyes of another specialist. It may be true that two different fields of medicine share the same standard of care for a given procedure. Again, however, the person who renders such an opinion should be competent to do so, and should present such evidence with competent supporting facts. In our view, for the reasons set forth above, a generalized statement that a “normal” standard of care applies is insufficient to carry this burden.

¶ 19 Finally, even if we were to agree with the Dissent with respect to the common law standards for expert witnesses, for the reasons set forth infra, we would hold that Dr. Lazar was unqualified to render an opinion under the MCARE Act. We now turn to that issue.

¶20 Appellant argues that the trial court erred by finding that Dr. Lazar was unqualified as an expert under the MCARE Act, 40 P.S. § 1303.512 (“Expert Qualifications”). This issue is marked by a procedural irregularity. At the hearing on the motion in limine, the court expressly ruled that its decision was not based on the MCARE Act. The trial court then ruled that Dr. Lazar’s testimony was inadmissible under the MCARE Act in its Rule 1925 opinion. See, footnote 2, supra.

¶ 21 Appellant argues in passing that § 1303.512 does not apply to this case because it was enacted after her complaint was filed. Appellant’s Brief at 12. We disagree. Section 1303.512 indicates that it became effective 60 days from March 20, 2002 (ie., on or about May 20, 2002). Thus, § 1303.512 had been in effect for approximately seven months before the trial court excluded Dr. Lazar’s testimony in December 2002.

¶ 22 Certain sections of the MCARE Act apply only to “causes of action which arise on or after the effective date” of those sections. See, e.g., Historical and Statutory Note to § 1303.513 (Statute of Repose), Historical and Statutory Note to § 1303.516 (Ostensible Agency). No such caveat applies to Section 1303.512. Accordingly, we hold that this section does apply to Appellant’s case.

¶ 23 The record reflects that the trial court did not allow the parties an opportunity to litigate the question of whether Dr. Lazar’s testimony was admissible under the MCARE Act. Thus, we cannot fault Appellant for raising this issue for the first time on appeal. See, DiGregorio v. Keystone Health Plan, 2003 PA Super 509, ¶ 16, 840 A.2d 361 (en banc).

¶ 24 At first blush, it would appear that a remand is necessary to determine whether Dr. Lazar’s opinion.was admissible under the MCARE Act. Ultimately, however, we conclude that no remand is necessary. The Act provides:

Section 1303.512. Expert qualifications

(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 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 applicable subspecialty or a related field of medicine within the previous five-year time period.

40 P.S. § 1303.512 (emphasis added).

¶25 Subsection (a) provides that the expert must, first, have “sufficient education, training, knowledge and experience to provide credible, competent testimony” and second, fulfill the additional qualifications set out in § 1303.512. In our view, the first part of subsection (a) restates the common law standards for rendering an expert medical opinion. The Act then adds new requirements, in addition to the common law requirements, in subsections (b) through (d). While certain requirements of other subsections may be waiveable, the “baseline” common law requirements of subsection (a) are not waiveable. Thus, it logically follows that if the expert’s opinion is inadmissible under the common law, it will not be admissible under the MCARE Act. As noted above, the court did not abuse its discretion by excluding Dr. Lazar’s testimony under the common law. As such, the testimony would be inadmissible under the MCARE Act as well.

¶ 26 Even if Dr. Lazar’s testimony meets the common law test set forth in subsection (a), we would hold that his testimony is inadmissible under subsection (b) of the MCARE Act. Subsection (b) provides that an expert who testifies as to any medical matter must possess “an unrestricted physician’s license.” 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”). The “physician’s license” requirement may be waived, so long as the court determines that the expert “is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.” 40 P.S. § 1303.512(b). It is clear from the record that the trial court chose not to waive this requirement, and would not have done so if we remanded the case. Moreover, we would see no abuse of discretion in the court’s decision not to waive this requirement.

¶27 Our disposition makes it unnecessary to examine subsection (c) in detail. Nevertheless, we do note that when an expert testifies with respect to the standard of care for a procedure performed by a board-certified physician, the testifying expert must “be board certified by the same or a similar approved board.” 40 P.S. § 1303.512(c)(3). Dr. Lazar is not board-certified in orthopedic surgery, nor is he certified by a “similar approved board.” Again, this requirement may be waived, but we would see no abuse of discretion in the trial court’s decision not to waive it in this case.

¶ 28 Finally, Appellant argues that the court abused its discretion by failing to allow Dr. Lazar to testify in person at the hearing.⁴ In order to analyze this issue, it is necessary to summarize the motion in limine proceedings. The record reflects that at the beginning of the hearing, Judge Tereshko indicated his reasons for denying the motion in limine. Judge Tereshko reasoned, in part, as follows:

[Dr. Lazar] would testify as to the standard of care in podiatric medicine, and the relevant issue in this case is the standard of care in orthopedic medicine. Although it’s the same body part that was operated upon, the same body part that was operated upon is the same body part that each of the relative doctors would have their specialty, it’s just literally two schools of medicine, that podia-tric school of medicine versus an orthopedic school of medicine.

And in formal [sic] conversation with counsel yesterday, it was pointed out to me that each of the relative experts would be opining within their area of expertise, that is, podiatric medicine and orthopedic medicine, and would be relying upon learned treatises in those respective areas. And learned treatises approach the subject matter from a different point of view, and come to different conclusions about the standard of care within their respective areas of medicine.

N.T., 12/17/2002, at 3-4.

¶ 29 Appellant’s counsel then urged the trial court to hear from Dr. Lazar personally. Appellant’s counsel argued as follows. The critical question was whether Dr. Hecht’s bunion-removal surgery sufficiently reduced the intermetatarsal angle in Appellant’s foot. Dr. Lazar learned from Dr. Hecht’s own testimony that the standard of care in orthopedic surgery is that the procedure should reduce the angle to between 9 and 11 degrees.⁵ According to Dr. Hecht, the surgery successfully reduced the angle to nine degrees (and thus fell within the orthopedic standard of care). In contrast, Dr. Lazar examined Appellant’s post-operative X-rays and found that Dr. Hecht’s surgery reduced the intermetatarsal angle to 14 degrees (and thus did not fall within the orthopedic standard of care). Finally, Dr. Hecht and Dr. Lazar each measure the intermetatar-sal angle the same way. Thus, according to Appellant, Dr. Lazar should have been able to testify that according to his calculations, the surgery failed to comply with the orthopedic standard of care. N.T., 12/17/2002, at 5-7. Moreover, Appellant stated that Dr. Lazar was prepared to testify that in podiatry school, he learned the differences between the orthopedic standard of care and the podiatric standard of care in terms performing the surgery at issue. Id. at 12. The trial court declined to hear Dr. Lazar’s testimony, on the ground that he remained unqualified to render an expert opinion.

¶ 30 While Appellant’s position has some appeal, we conclude that the court did not abuse its discretion in declining to hear from Dr. Lazar personally. First, Dr. Lazar’s familiarity with the orthopedic standard of care is largely based on repeating what Dr. Hecht has stated. The general rule is that experts may express opinions based in part on hearsay or otherwise-inadmissible evidence, but such evidence still must be the sort of evidence which is customarily relied upon by experts in the practice of their profession. Yacoub, 805 A.2d at 593. As a podiatrist, Dr. Lazar does not customarily rely on evidence of an orthopedic surgeon’s standard of care. Thus, Dr. Lazar may not rely on his secondhand knowledge of the orthopedic standard of care. Id.; Dierolf, 581 A.2d at 650.⁶

¶ 31 Next, Dr. Lazar’s expert report criticizes far more than the alleged failure of Dr. Hecht’s surgery to reduce the inter-metatarsal angle. Specifically, Dr. Lazar’s report states that Dr. Hecht: (1) neglected weeks of post-operative X-rays which would have revealed that the operation failed to fully correct the problem and indeed produced the new problem of “metatarsal elevatus”; (2) erred by using a new type of absorbable internal fixation device on an overweight patient; and (3) erred by allowing Appellant to put weight on her foot, when Appellant should have kept all weight off of the foot for at least 5-6 weeks. Dr. Lazar opined that all of these errors harmed Appellant and fell below the [unspecified] “normal standard of care.” In other words, Dr. Lazar criticized Dr. Hecht’s entire operative and post-operative treatment of Appellant. At the hearing, Appellant never offered to prove that Dr. Lazar had the training or expertise necessary to render a competent opinion as to the orthopedic standard of care in all of these areas. Thus, the trial court did not abuse its discretion by refusing to hear from Dr. Lazar at the hearing.⁷ Appellant’s final claim fails.

¶ 32 Order affirmed.

¶ 33 Judge JOHNSON files a Dissenting Opinion.

1 . Appellant further alleged that subsequent corrective surgical procedures, performed by a podiatrist, largely improved her condition.

2 . On January 16, 2003, the trial court ordered Appellant to file a Concise Statement of Matters Complained of on Appeal under Pa.R.A.P. 1925. Appellant filed a timely Concise Statement on January 24, 2003. Appellant raised five issues in the Concise Statement. The first four issues in the Concise Statement correspond to Issue "A” in Appellant’s brief on appeal. The fifth issue in the Concise Statement corresponds to Issue "C” in Appellant’s brief.

The trial court filed its Rule 1925 opinion on August 14, 2003. In this opinion, the trial court ruled for the first time that Appellant’s expert report was inadmissible under the MCARE Act. Trial Court Opinion, 8/14/2003, at 5-7. Appellant’s response to this opinion is set forth in Issue "B” of her brief on appeal.

3 . Indeed, as noted further infra, the newly enacted MCARE Act reflects this concern in great detail.

4 . Appellant raised this issue in her Concise Statement under Pa.R.A.P. 1925, but the trial court did not address this issue in its Rule 1925 opinion.

5 . Appellant's preoperative intermetatarsal angle was 18 or 19 degrees.

6 . There is wisdom to the requirement that there be some linkage between the expert's field of study and his opinion about the relevant standard of care. Without such a link, an expert in any field could testify about the standard of care in any other given field, so long as the expert purports to learn that standard through a literature search or through hearsay.

7 . We stress that we do not condone the practice of relying solely on an expert's curriculum vitae, when determining whether he or she is competent to testify. Rather, the better practice is for trial courts to take evidence directly from the expert before ruling on the issue.