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An infectious disease expert’s testimony against a neurosurgeon was admissible in a medical malpractice case even though the witness practiced a different specialty from the defendant doctor, a Philadelphia judge has ruled. Common Pleas Court Judge Allan L. Tereshko, in what is apparently a case of first impression under the sweeping medical malpractice litigation reforms enacted last year under the Medical Care Availabilty and Reduction of Error (Mcare) Act, said that a doctor who practices in a specialty area that is different from that of the defendant’s may still provide expert testimony if both professionals treat infectious disease in the course of their practice. Under Tereshko’s ruling, a physician may provide expert testimony in an action against a surgeon, as long as his opinion is limited to the diagnostic and treatment choices made by the defendant doctor and steers clear of the defendant’s surgical decisions. In pretrial and post-trial motions, lawyers for the accused neurosurgeon, Dr. Robert H. Rosenwasser, objected to the testimony of Dr. Joseph Cervia because infectious disease doctors and surgeons are not certified by the same medical boards. The trial court’s Aug. 12 opinion explained why it denied the neurosurgeon’s motions after the jury in Callari v. Rosenwasser awarded $900,000 in damages to the patient’s estate in November. “Clearly, the specific standard of care at issue in this case deals with the proper diagnosis and treatment of an infectious disease” and not the surgery, Tereshko wrote. The care was not under the exclusive expertise of a neurosurgeon, and so an infectious disease expert would be substantially familiar with such treatment, Tereshko explained. The court pointed out that Rosenwasser’s own testimony established that treating infectious diseases was outside of his specialty. A jury unanimously found that after performing surgery on Angelo Callari for a brain aneurysm in 1996, Rosenwasser misdiagnosed and failed to properly treat a post-operative infection. Callari, 39, died six months later, and in 1999, his wife, Debra Callari, sued Rosenwasser for malpractice. The Mcare Act requires that medical expert witnesses be “substantially familiar” with the standard of care for the specific treatment at hand. The law, enacted last year, also says the expert must practice in the same subspecialty as the accused physician — unless treatment of the condition did not fall under the specialty of the accused doctor but under the expert’s specialty. The court found that under the Mcare Act, even though Cervia was not a surgeon, “the issue here is whether or not the infection was treated properly and thus the proper expert opinion would have been in the area of infectious disease.” The Mcare law was not enacted until after the Callaris’ attorney, Martin Goch of Kardos & Goch in Philadelphia, submitted Cervia as the plaintiff’s expert. Still, the court ruled that the Mcare Act applied and that Cervia was qualified. “The fact that he was a neurosurgeon was irrelevant,” Goch said of the accused doctor, Rosenwasser. “It was really an infectious disease case managed by a neurosurgeon. Theoretically, it could have been any kind of surgery.” Rosenwasser’s attorney, Frederic L. Goldfein of Goldfein & Hosmer, declined to comment on the specifics of the case. Even if the Mcare Act didn’t apply, the trial court said, Cervia easily qualified as a medical expert under Pennsylvania common law, which requires witnesses to have “any reasonable pretension to specialized knowledge on the subject under investigation.” In his reasoning, Tereshko pointed to Poleri v. Salkind, a 1996 decision where the Superior Court affirmed a lower court decision to permit an infectious disease expert to testify against a neurosurgeon regarding the standard of care used to treat a post-operative infection following surgery. Even though the Poleri decision predates the Mcare Act, the facts of the cases are similar, Tereshko wrote. Both cases involved neurosurgeons, their management of post-operative care and incomplete or incorrect antibiotic treatment. In Callari, when plaintiff Angelo Callari ran a fever and an elevated white blood cell count after surgery, blood tests were ordered and antibiotics administered. The test came back positive for bacteria that can cause inflammation and infection of the inner lining of the heart. When his fever and white blood cell count fell, Callari was taken off the antibiotics and sent home in October 1996. After complaining of continued symptoms and another hospitalization, he died the following April. In its ruling, the trial court re-emphasized its denial of Rosenwasser’s other motions, among them a motion for compulsory nonsuit and a request to grant the defendant a directed verdict because Cervia was not a qualified witness. Tereshko also denied Rosenwasser’s argument that Cervia had failed to testify to a reasonable degree of medical certainty that the patient’s infection in October 1996 caused his death in 1997. The court wrote that Cervia provided “sufficient testimony” to establish to a reasonable degree of certainty that the negligence increased the risk of harm to Callari. The case is currently on appeal to the Superior Court.

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