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A witness whose medical practice was not in the same subspecialty as a defendant doctor’s could provide expert testimony in a medical malpractice case because he was familiar with the standard of care for treating a patient with a piece of steak lodged in his throat, the Pennsylvania Superior Court has ruled in a case of first impression. The three-judge panel, in an opinion by Senior Judge Justin Morris Johnson, also held that co-defendants who settle out of a malpractice case can be listed on a jury’s verdict sheet for purposes of the apportionment of liability if the plaintiff has presented sufficient evidence to support a malpractice claim against them — even if that evidence doesn’t include an expert report and the co-defendant on trial did not file a cross claim against them. The case, Herbert v. Parkview Hospita was one in which the Medical Care Availability and Reduction of Error (MCARE) Act did not require an expert to be within the same subspecialty as the defendant physician, the panel concluded. “The issue was really one of any doctor recognizing an airway obstruction,” said Derek Layser, lawyer for the plaintiff. The “same subspecialty” requirement described in Section 512(c)(2) of the MCARE Act includes an “express caveat,” the court observed, “reflecting the Legislature’s decision to afford the trial court discretion to admit testimony from a doctor with expertise in another specialty that ‘has a similar standard of care for the specific care at issue.’” Last Thursday’s decision affirmed a Philadelphia trial judge’s interpretation of the MCARE Act, concluding that Common Pleas Judge Mary D. Colins correctly permitted the expert internist, Ian Newmark, to testify in the July 2003 trial. The “specific care at issue” in Herbert was the failure of the defendant physician to treat a 73-year-old dialysis patient suffering from the “allegedly clear respiratory problem” of having a large piece of steak caught in his throat for two days, Johnson wrote. The patient, Charles R. Herbert Sr., who was rushed to the hospital when he had trouble breathing, developed an infection after the steak was finally removed. He died a week later. A representative of his estate sued the hospital and the treating physicians, alleging medical malpractice, according to the opinion. Newmark testified that the respiratory distress should have been obvious to the defendant doctor, William A. Nickey, a nephrologist, or kidney specialist, who had been treating the dialysis patient for end-stage kidney failure, according to the opinion. “Dr. Newmark, he should be able to testify in a case like that,” said Layser of Layser & Freiwald. “He works with and consults with nephrologists in critical care settings all the time, so he has to know what they know how to do.” “The MCARE Act plainly prefers, and in some cases may require, that expert testimony in professional medical malpractices cases come from witnesses with expertise in the defendant’s particular subspecialty,” Johnson wrote. “We do not read the act to require, however, that expert testimony in all cases be so restricted.” The only other trial judge to have considered a similar issue was Common Pleas Judge Allan L. Tereshko, who ruled last summer that Section 512 permitted an infectious disease expert to testify against a neurosurgeon because they both treated infectious diseases in the course of their practices. Tereshko’s decision came in a case captioned Callari v. Rosenwasser. Gary M. Samms of Obermayer Rebmann Maxwell & Hippel represented Nickey on appeal. Samms said the Superior Court ruling directs the trial judge to examine the treatment at issue and decide whether it is one related to a specific subspecialty or one belonging to general medicine at large. “The court said that if it’s an issue of general medicine, you don’t need a subspecialist to testify,” Samms said. While Samms lost his challenge to Newmark’s testimony, his argument against the plaintiff’s motion for a new trial succeeded. In post-trial motions, Herbert’s estate argued that Colins should not have included on the jury’s verdict sheet the names of defendant parties — the hospital and another doctor — who had settled with the plaintiff a year before trial. This allowed the jury “to apportion liability to those defendants who had settled with administratrix,” Johnson explained. The jury’s award of $140,399 allocated only 10 percent of liability ($14,040) to Nickey, according to the opinion. “[The plaintiff] contends that a plaintiff … must produce expert testimony demonstrating a breach of the standard of care and proximate causation of the injury in question attributable to the parties, and that no such evidence was adduced at trial,” Johnson explained. “She notes as well that none was required, since Parkview Hospital and Dr. [Elizabeth] Shandor already had settled and Dr. Nickey asserted no cross-claim against Parkview Hospital or Dr. Shandor.” The Superior Court panel affirmed Colin’s refusal to mold the verdict, concluding that the evidence against the hospital and the other doctor, Shandor, “was sufficient to warrant submission of these parties to the jury for apportionment.” Neither expert reports nor cross claims against the co-defendants was necessary. Newmark “testified more than adequately to a standard of care that, while focused on establishing Dr. Nickey’s negligence, cast an equally damning light on the performance of every physician who had a hand in treating [Herbert] from May 8, when he was admitted to Parkview Hospital, until the piece of steak was found lodged in his throat on May 10,” Johnson wrote. Samms, the defense attorney, said the ruling’s effect would likely be felt immediately in some Philadelphia courtrooms. “There have been instances in Philadelphia where Court of Common Pleas judges have been refusing to place joint tortfeasors that had settled out on the verdict sheet,” Samms said. The Herbert decision “allows a defendant in a med mal case to keep them on the verdict sheet for apportionment purposes, regardless of whether you had an expert or a cross claim.” As a result, the amount of payouts in medical malpractice cases would be reduced because plaintiffs’ lawyers would be blocked from using their “divide and conquer” strategy of convincing some joint tortfeasors to settle, while putting others on the verdict sheet to bear the entire weight of a verdict alone, Samms said. “This would cut down on double dipping by plaintiffs,” he said. Johnson did say, however, that “under certain circumstances, a profound lack of evidence regarding settling defendants may preclude the inclusion of those defendants on the jury verdict sheet.” Judges Michael T. Joyce and Mary Jane Bowes also participated in the decision.

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