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Qualification of expert witnesses under the MCARE Act does not require an exact match of specialty with the defendant physicians, the Pennsylvania Superior Court has ruled in a decision expanding the discretion of trial courts to accept medical expert testimony. The panel said trial courts may rely on overlapping standards of care between physicians in different specialties that would allow a doctor in one specialty to testify on the treatment rendered by another. The appeals court upheld an award in the case of more than $1 million with delay damages. In Smith v. Paoli Memorial Hospital, the appeals court affirmed Philadelphia Common Pleas Court Judge Sheldon C. Jelin’s decision to allow the plaintiff’s expert witnesses to testify on the defendants’ standard of care in a wrongful death and survival action stemming from an alleged delayed diagnosis of cancer. Writing for a unanimous three-judge panel, Judge Kate Ford Elliott said § 1303 of the Medical Care Availability and Reduction of Error Act permitted a board-certified general surgeon and a board-certified oncologist and internist to testify about the work of two board-certified gastroenterologists. The oncologist and general surgeon testified at trial that the gastroenterologists acted below the standard of care by not giving a patient with repeated episodes of rectal bleeding a CT scan. Section 1303.512(c) of the MCARE Act, which outlines qualification standards for experts, requires that expert witnesses “[b]e substantially familiar with the applicable standard of care,” and “practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care” as that at issue in the lawsuit. But subsection (e) gives trial judges the power to waive the requirements if they find the witness “possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement” in the subspecialty “or a related field of medicine.” Ford Elliott said that the MCARE Act and the experts’ testimony provided an adequate basis for allowing them to be heard in the case. Under the Superior Court’s decision in Herbert v. Parkview Hospital, Ford Elliott pointed out, the key consideration is whether “the expert [is] familiar with the standard of care for the specific care at issue and practice in the same or a substantially similar subspecialty which has a substantially similar standard of care for the specific care at issue.” Even though the Herbert court admitted that the act “plainly prefers” that expert testimony come from doctors in the same subspecialty, it does not restrict expert testimony in that way in all cases. Ford Elliott extended the reasoning of the Herbert court. In Herbert, the court properly allowed an internist to testify on the standard of care of nephrologists, who specialize in the renal system. Nephrology is a subspecialty of internal medicine. In Smith,/i>, the general surgeon and oncologist were testifying on the standard of care of two gastroenterologists — and gastroenterology is not a subspecialty of either of those specialties. The main factual issue involving the two gastroenterologists was whether they had deviated from the standard of care due Smith in failing to order a CT scan to investigate the possibility of an extrinsic tumor, Ford Elliott said. In Smith, the primary care physician for Maureen T. Smith, 61, referred her to a general surgeon when she complained of rectal bleeding in May 1998. The surgeon immediately had Smith admitted to Paoli Memorial Hospital. A gastroenterologist with Main Line Gastroenterology Associates, Matthew Astroff, was called in to assist in the testing and diagnosis of Smith. According to Ford Elliott, the doctors performed numerous tests on Smith — in the hospital and later as an outpatient — but could not determine the exact cause of her bleeding. They also could not rule out the possibility of a tumor. Six months later, Smith again experienced rectal bleeding and was admitted to the hospital. Another gastroenterologist with Main Line Gastroenterology, Richard D. Tolin, performed a colonoscopy and could come to no definitive diagnosis. A year after the second admission, Smith again was admitted to a hospital. She was placed under Astroff’s care, Ford Elliott wrote. Again, tests were performed but no definitive diagnosis. The working diagnosis, Ford Elliott quoted Astroff as saying, was that Smith had suffered from an arteriovenous malformation. In March 2000 — 22 months after her first episode of rectal bleeding — Smith’s primary care physician admitted her to the hospital with lower abdominal pain and fever. A CT scan revealed a large mass on the small bowel, Ford Elliott wrote. Smith was transferred to Memorial Sloan-Kettering Hospital, where the tumor was determined to be malignant. After several surgeries, Smith died in December 2000. To prove the gastroenterologists failed to meet the requisite standard of care, the plaintiff wished to present expert testimony from two medical experts: W. Stuart Battle, the general surgeon, and Allen Krutchik, the oncologist and internist. Ten days before trial in Philadelphia Common Pleas Court, lawyers for the gastroenterologists filed a motion asking Jelin to preclude the expert witnesses under the qualification criteria in the MCARE Act. Jelin did not grant the motion, and the trial went forward with the two experts providing their critique of the gastroenterologists’ diagnostic practice. The jury found the gastroenterologists liable for 50 percent of Smith’s damages, Ford Elliott wrote. The gastroenterologists appealed the decision to Superior Court. Ford Elliott said that Krutchik had training in several different specialties within oncology, including gastrointestinal oncology. Moreover, he testified to having seen patients with gastrointestinal cancers and having published papers on small bowel sarcoma. Battle testified that most cancer surgery, including cancers of the stomach and bowels, is performed by general surgeons, like himself. Furthermore, he testified to having experience in diagnosing and treating cancers of the gastrointestinal tract. Battle was a member of the American Society of Gastrointestinal Endoscopy for more than 30 years, Ford Elliott pointed out. General surgeons, Battle said, would apply the same standard of care as a gastroenterologist in addressing the problem of bleeding from the gastrointestinal tract. Joining Ford Elliott on the panel was Judge Michael T. Joyce and Senior Judge Frank J. Montemuro Jr., the retired state Supreme Court Justice. The plaintiffs attorney in the case was David C. Federman of Golomb & Honik in Philadelphia. Defense lawyers were Barbara S. Magen and Sheila Ann Haren of Post & Schell in Philadelphia, along with James P. Kilcoyne of Kilcoyne & Associates in Plymouth Meeting, Pa.

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