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An OB/GYN specialist is not qualified to offer expert testimony concerning a colorectal procedure that stemmed from a utero-vaginal condition, a Pennsylvania Superior Court panel has ruled. In its 2-1 memorandum decision in Fried v. Spurlock, the majority affirmed a Northampton County, Pa., trial court’s exclusion of the testimony offered by a medical malpractice plaintiff’s medical expert as to the standard of care given by her colorectal surgeon. After suffering a utero-vaginal prolapse, Vivian Fried was operated on by obstetrician/gynecologist John Spurlock, whose surgery included the placement of an abdominal mesh sling to support Fried’s bladder, according to the opinion. There were complications following surgery, and Fried was referred to co-defendant Anthony Dippolito, a colorectal surgeon, who performed surgery that included bowel re-sectioning and an attempt to remove the abdominal mesh. Once again, Fried suffered complications, and was operated on a year later. During that procedure, another piece of the mesh sling was located and removed, according to the opinion. After filing suit against Spurlock and Dippolito, Fried retained as her expert medical witness Ralph Epstein, chief of gynecology at a Baltimore hospital. Dippolito sought preclusion of testimony Epstein offered as to his care, arguing that Epstein was unqualified to testify as to the colorectal surgery under the Medical Care Availability and Reduction of Error Act. Ultimately, a jury determined negligence on the part of Spurlock, but Dippolito successfully moved for summary judgment. “The trial court noted that the OB/GYN expert may have had a similar standard of care as a colorectal surgeon defendant in removing mesh in general,” the memorandum states. “However, the OB/GYN expert did not profess to have expertise in performing the extensive colon and rectal surgery that was carried out by the defendant colorectal surgeon in this case. Even if the OB/GYN expert might have been able to testify as to the standard care in removing the mesh under some circumstances, he was not familiar with the problems in removing mesh when in the process of the major colorectal surgery performed in this case.” The majority consisted of Judges Richard B. Klein and Joan Orie Melvin, who concurred in the result. In his dissent, Senior Judge Frank J. Montemuro Jr. noted that Epstein had been involved in mesh-placement procedures on numerous occasions and argued that the importance of removing all pieces of mesh to prevent future infections is common medical knowledge. The majority opinion noted that under the MCARE Act, an expert medical witness must practice either the same subspecialty as the defendant doctor or one that has a “substantially similar standard of care for the specific care at issue.” The exception to that rule is that a trial court can waive that requirement if the expert is found to have sufficient experience and training in the area on which he or she will be testifying. “Dr. Dippolito claims that Dr. Epstein never even indicated he was a surgeon, much less one knowledgeable in colorectal surgery,” the opinion states. “This claim is not precisely true. By all appearances, Dr. Epstein is qualified to do some surgical procedures as indicated by his testimony that he performs roughly 24 surgeries a year similar to the placement of the mesh that Fried initially underwent. “However,” the majority added later, “there is nothing of record to indicate that Dr. Epstein, as an OB/GYN, is qualified to perform or ever performed an operation such as the one performed by Dr. Dippolito, involving the removal of the mesh in conjunction with a bowel resection.” The majority also called attention to the fact that after reviewing Fried’s case, he had prepared two multi-page reports regarding Spurlock’s treatment, but offered a third that was only one-paragraph long concerning Dippolito’s. “This report simply says it can be very difficult to remove the mesh, but that it needs to be removed,” the opinion states. “It does not say exactly how Dr. Dippolito failed in his task. � The report is silent as to anything specific that Dr. Dippolito negligently did or did not do.” In his dissenting opinion, Montemuro wrote that the majority’s “rationale advances the notion that the expertise necessary to offer opinion evidence in a medical malpractice case is entirely contextual.” Montemuro characterized the need to remove mesh as something of which any physician or surgeon would be cognizant, and drew a distinction between that procedure, which was at issue in Fried, and Dippolito’s colorectal procedures, which were not. Fried’s attorney, Michael Deschler of Littner Deschler & Littner in Bethlehem, Pa., said that his client is considering her appellate options. Deschler said that the mesh removal Dippolito was accused of improperly performing was “not the complex procedure that the defendants were alleging.” Dippolito’s attorney, George Nace III of Post & Schell in Allentown, Pa., did not immediately respond to a call seeking comment.

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