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Retroactive application of the MCARE Act’s provisions as to expert witnesses is permissible where a matter’s parties were well aware of the legislation’s impending enactment, a three-member Superior Court panel has unanimously ruled. Trial proceedings in the underlying medical malpractice action in George v. Ellis had taken place in a central Pennsylvania common pleas courtroom roughly two weeks before the Medical Care Availability and Reduction of Error Act went into effect in May 2002. In reaching its decision, the panel relied on a 2005 Superior Court precedent stating that the act’s qualifications must be met if an expert testifies after the law’s effectiveness date in a case filed before MCARE was enacted. The two-judge majority in George also held that a Canadian physician not licensed to practice in the U.S. is not qualified under MCARE’s criteria to testify as an expert witness in a Pennsylvania med mal case. Tuesday’s decision marked the second time the Superior Court has filed a ruling in George, a matter coming out of Blair County. In March 2003, a separate three-judge panel had concluded that the Canadian physician, orthopedic surgeon Charles Bull, was qualified under common law standards to testify on behalf of plaintiff Debra George. The George I panel ruled that Jefferson County Common Pleas Senior Judge William L. Henry (who was sitting in Blair County by designation) should not have found Bull unqualified as an expert witness in May 2002 – a decision that resulted in his entering a compulsory nonsuit shortly thereafter, according to opinions and attorneys involved in the case. Judge John L. Musmanno, Senior Judge John T.J. Kelly and then-President Judge Joseph A. Del Sole ordered a new trial at which Bull would be permitted to offer his expert opinion. On remand, defendant Thomas Ellis – accused of performing three unnecessary knee surgeries on George – argued that even if Bull was permitted to testify under common law standards, he was not qualified under MCARE’s more rigid expert witness guidelines. Blair County Common Pleas Judge Elizabeth A. Doyle agreed, and in May 2005 granted a defense motion for summary judgment. In her second appeal to the Superior Court, George argued that Doyle’s 2005 disqualification of Bull contradicted the court’s holding in George I, that the MCARE Act should not have been applied retroactively and that Bull should be considered qualified as an expert witness under the law. “This court did not previously decide Dr. Bull’s qualifications with regard to the MCARE Act and, as such, [the defense is] raising a different issue before the trial court on remand,” Senior Judge Zoran Popovich wrote on behalf of the George II majority. “Therefore, [the defense was] not precluded by the law of the case doctrine from litigating the issue of whether Dr. Bull was competent to testify as an expert witness under the MCARE Act.” Popovich was joined by Judge Joan Orie Melvin. In support of their decision that MCARE should be retroactively applied in George, the majority called attention to a separate Superior Court panel’s decision last year in Bethea v. Philadelphia AFL-CIO Hospital Association. The majority rejected George’s argument that even if MCARE’s expert-witness requirements do apply in her case, “fundamental fairness” calls for her to be able to put forward a substitute expert witness. It was on this point that the third member of the George II panel, Judge Debra Todd, dissented. Todd argued that George should be afforded the chance to proffer testimony from a new expert witness. And while the majority reasoned that Bull should be disqualified under MCARE due to his not being licensed to practice in the U.S., they did go on to acknowledge that Bull would be considered qualified under the law’s other expert witness criteria, even though he had never performed one of the types of surgeries at issue in George nor been accredited by the same medical boards as the case’s defendant physician. Attorneys involved in George said that although the balance of the majority’s MCARE analysis amounts to dicta, it does indicate some possible leeway for med mal plaintiffs in future cases. George’s attorney in the matter, Philip Fabiano of Howard F. Messer & Associates in Pittsburgh, said attorneys for med mal defendants often object to a plaintiff’s expert witness on the grounds that he or she cannot boast a resume identical to that of the defendant doctor. “I’ve seen defense counsel say, ‘It’s got to match 100 percent,’” Fabiano said. But Tracey Benson of Miller Kistler Campbell Miller Williams & Benson in Bellefonte, who was defense attorney in George, said that although the majority’s dicta is favorable to plaintiffs generally, its prohibition against non-U.S.-licensed doctors’ testifying as expert witnesses in Pennsylvania med mal actions is clear. “A doctor from Sweden who may be the best in the world can’t come here,” Benson said. (Copies of the 22-page opinion in George v. Ellis , PICS No. 06-1512, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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