Unqualified Expert • Knee Pain from Fall • Summary Judgment

Fanuiel v. Roxborough Mem. Hosp., PICS Case No. 13-3386 (C.P. Philadelphia Oct. 29, 2013) Mazer Moss, J. (8 pages).

Plaintiff Jacque Fanuiel brought suit against defendant Roxborough Memorial Hospital alleging medical malpractice resulting from Fanuiel’s emergency room visit for right knee pain following a fall. Fanuiel argued co-defendant Dr. R. Jerry Salomone failed to diagnose and/or treat compartment syndrome.

The court entered a case management order on November 16, 2011 which established an expert deadline. Roxborough filed for summary judgment after Fanuiel failed to meet the expert deadline and had not requested an extension.

Fanuiel opposed the motion for summary judgment arguing that an expert witness was not required because the breach was so obvious that it was within range of ordinary experience and comprehension of non-professional persons. Brannan v. Lankenau Hosp., 417 A.2d 196 (1980). Fanuiel offered a causation report by a certified doctor in psychiatry and neurology substantiating her claim that an expert was unnecessary. Roxborough countered the report citing the lack of qualifications and expertise by the doctor, including he was not qualified in emergency medicine or orthopedic surgery.

Following oral argument, the court found Fanuiel failed to prove expert testimony was not required and granted summary judgment in favor of Roxborough. Fanuiel filed for reconsideration but offered no new facts or law; reconsideration was denied. Fanuiel then filed the instant appeal arguing the court erred in granting summary judgment.

The court held that Fanuiel was required to offer expert testimony as the “events and circumstances…are beyond the knowledge of the average lay person.” Montgomery v. South Philadelphia Med. Grp., 656 A.2d 1385 (Pa.Super. 1995). Further, Fanuiel failed to establish a prima facie case as she was unable to provide evidence that an expert testimony was unnecessary and the report proffered was drafted by an unqualified doctor under the Medical Care Availability and Reduction of Error Act, 40 P.S. §1303.512.

Because Fanuiel failed to provide that expert report within the time constraints required in the case management order, the court properly granted Roxborough’s motion for summary judgment.