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Podiatrist Not Competent as Expert Against Orthopedic Surgeon

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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