Articles Posted in Expert Testimony

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The Pennsylvania Supreme Court recently held that a Podiatrist could not give expert testimony against an Orthopedic Surgeon concerning the proper standard of care in a medical malpractice lawsuit concerning bunion care. Wexler v. Hecht, 928 A.2d 973 (Pa. 2007). The highest court in Pennsylvania found that because podiatrists attend podiatric school and not medical school, the training and licensing of a podiatrist is different from a medical doctor. Consequently, as a matter of law based on the Court’s interpretation of section 512 of the MCARE Act, which limits expert who may testify on the standard of care to those with an “unrestricted physician’s license,” a podiatrist does not possess the required expertise to give expert testimony against an orthopedic surgeaon, who holds a medical degree. This holding demonstrates how the MCARE Act has limited the previous Rules of the Pennsylvania courts, as this ruling apparanently now trumps the much more liberal Pennsylvania Rule of Evidence 702 concerning expert testimony.

The Pennsylvania Supreme Court’s analysis in concluded that there is bright line rule separating physicians and podiatrists. Physicians must either have a medical degree or an osteopathic degree, which is a medically based. Both Medical Doctors (M.D.) and Osteopaths (D.O.) are trained about the entire body and are licensed and boarded by the same/similar private and state organizations. Podiatrists hold only a podiatric degree and their education and training is limited to the feet. Podiatrists are also licensed and tested by a different organization. Consequently, the Court found that Podiatrists did not have the proper expertise to offer standard of care testimony against orthopedic surgeons.

This case did not clarify if the reverse situation would be permissable; that is: may an orthopedic surgeon still testify as to the standard of care against a podiatrist? I believe that because the orthopedist is a medical doctor, the court would still likely permit this type of expert testimony. This case also addressed the retroactive application of the MCARE Act and the court held that the MCARE Act did apply. Fortunately, this issue is not relevant to any cases filed in the future.

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In New Jersey, as in many states including Pennsylvania, medical experts in medical malpractice cases must be qualified in a defendant doctor’s area of medicine to give an opinion that the doctor deviated from the standard of care. In a case involving thoracic cord compression, necrotic disc injury, permanent nerve damage and diabetic neuropathy, an appeals court in New Jersey held that a Neurologist was qualified to offer an expert opinion against an internal medicine physician, a physiatrist (rehabilitation physician), an emergency room doctor and an orthopedic surgean concerning treatment of these spinal cord and nerve disorders. Bull et al. v. Zeidman et al., 2007 WL 1008887 (N.J. Super. Ct. App. Div.).

As in Pennsylvania, the court concluded that the Neurologist’s credibility was to be decided by the jury, which could weigh his testimony, education and experience. Although the Neurologist was not board-certified in any of the defendant physicians’ specialties, because he had 25 years of experience as a Neurologist and had experience treating patients with the plaintiff’s spinal cord and nerve disorders, he was qualified to offer his opinion to the jury.

In Pennsylvania, although the Medical Care Availability and Reduction of Error Act (“MCARE Act”) does generally require same specialty match in order for a medical expert to be qualified to offer standard of care opinions, there are some exceptions. For example, orthopedic surgeons have been found qualified to offer standard of care opinions against defendant podiatrists. This is contrasted with Delaware, which now requires strict specialty matching as a minimun qualification for medical experts.