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Under the MCARE Act, an expert testifying in a medical malpractice action must have practiced or taught in a relevant specialty area no more than five years prior to offering testimony, a Pennsylvania Superior Court panel has ruled in an apparent case of first impression. Section 512(b) of the Medical Care Availability and Reduction of Error Act states that an expert testifying on matters related to a medical procedure must “be engaged in or retired within the previous five years from active clinical practice or teaching,” but it does not explicitly set the date from which those five years should be measured. Last year, in Weiner v. Fisher, a Philadelphia judge said the MCARE qualification “clock” runs back from the date of the testimony. Now, the Superior Court has agreed, rejecting the plaintiff’s argument that the five-year window should begin at the moment of the alleged malpractice — a conclusion reached by a Lancaster County, Pa., judge in a 2003 ruling. Writing for the appellate court, Senior Judge Phyllis W. Beck noted that § 512(b) is written in the present tense, so when it states that a testifying expert must “possess an unrestricted physician’s license,” the requirement exists at the time of testimony, not at some point in the past. Similarly, Beck said, “the relevant time period from which retirement is measured” should be “the time at which testimony is given.” “To apply a different temporal reference point to the segment of the statute that deals with a retired expert would violate the plain meaning of the statute,” Beck wrote. The plaintiff in Weiner may still get another day in court since the appellate panel sent the case back to a Philadelphia judge to consider whether the expert was actively teaching in the relevant specialty within the five years before the case went to trial in March 2003. According to the opinion, the estate of Leon J. Weiner sued Robert Fisher, an esophageal disease specialist, for failure to diagnose and treat Weiner’s gastrointestinal cancer over the eight years between 1990 and 1998. In 1998, Weiner was diagnosed with the cancer by another gastroenterologist. He died in 2000 at age 74. In post-trial motions, Shirley C. Weiner, executrix of the estate, challenged Judge Allan L. Tereshko’s disqualification of the plaintiff’s expert, William Bisordi. According to the opinion, Tereshko granted a nonsuit to the defense after ruling that Bisordi wasn’t actively practicing or teaching in the specialized field of gastrointestinal endoscopy. Weiner argued that § 512(b) requires an expert to be actively involved in practice or teaching five years before the date of the alleged malpractice. In this case, Bisordi retired in 1995 from active practice, while the alleged malpractice occurred between 1990 and 1998. But the court disagreed, finding “no logical or grammatical way to infer that the relevant time period from which retirement is measured is different from the relevant time period for the other parts of § 512(b), i.e., the time at which testimony is given.” Beck noted that § 512(c) of the MCARE Act requires an expert to 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.” But no such reference to an expert’s qualifications at some point in the past exists in § 512(b)’s qualifications for retired experts, she wrote. “Section 512(b) and (c)(1) are similar in that they both specify qualifications for an expert testifying in a professional liability action,” Beck wrote. “However, only Section 512(c)(1) specifies that the relevant time of consideration is when the alleged breach of the standard of care took place. We must conclude that since the legislature did not include this temporal directive in Section 512(b), its intent was distinct in the two sections.” Furthermore, Beck said, this conclusion is consistent with the fact that § 512(c)(1) — setting forth requirements for experts testifying to the standard of care — is only triggered when an expert initially qualifies under § 512(b) — dealing with qualifications for all medical experts. In a footnote, Beck favorably cited some of the policy arguments made by Lancaster County Judge James P. Cullen in his 2003 opinion in Spotts v, Small, in which he ruled that the § 512(b) five-year time period for qualifying an expert should be measured from the date of alleged malpractice. Specifically, Beck worried that pretrial delays could result in retired experts, initially qualified under § 512(b), losing their ability to testify at trial. Judge Debra M. Todd wrote separately to second this concern. “The unfairness and substantial inefficiency of this result for a litigant who may have no control over a pretrial delay is of such a serious nature that I believe it warrants the renewed attention of the legislature,” Todd wrote. Judge Joseph A. Hudock joined both the majority opinion and Todd’s concurring statement. The court sent the case back to the Philadelphia trial court to determine whether Bisordi was actively teaching in the field of gastroenterology at the time of trial, qualifying him as an expert under § 512(b). Tereshko ruled that Bisordi was not qualified to testify because “he was not teaching in the specialized field of endoscopy which is the specialty he was being offered to testify in.” Beck said that endoscopy is not actually a subspecialty of gastroenterology but rather “a diagnostic technique in which a cavity of the body is subjected to visual inspection by means of an endoscope.” Consequently, she wrote, the trial judge’s “limited focus on endoscopy, rather than on the subspecialty of gastroenterology, constituted a misinterpretation of the plain meaning of the statute and hence was an error of law.” The court then remanded the matter to the Philadelphia court “for a reconsideration of [Bisordi's] qualifications as a teacher of gastroenterology.” Noting a lack of case law or statutory guidance for what constitutes active teaching under § 512(b), Beck said the expert need not be a full-time teacher to qualify, but at the same time “a de minimis level of teaching is not sufficient to satisfy the statute.” Given the result, the court did not resolve a constitutional challenge to the MCARE Act’s expert requirements, also raised by the plaintiff. Glenn C. McCarthy of Spencer Maston & McCarthy in Philadelphia was counsel of record for Weiner. Fisher was represented by Charles A. Fitzpatrick III of Broomall-based Mylotte David & Fitzpatrick.

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