Consider Retaining Multiple Experts to Opine on the Standard of Care to Increase Your Chances of Securing a Defense Verdict

Defense Digest, Vol. 22, No. 4, December 2016

By John Farrell, Esq. & Daniel Dolente, Esq.*

Pennsylvania’s MCARE Act does not prevent a doctor who specializes in one medical specialty from rendering a standard of care opinion on behalf of a doctor who specializes in a different medical specialty, so long as their specialties overlap and the testimony is directly relevant to the issues in the case. In addition to using an expert who is similarly qualified to your client, consider retaining a specialized expert outside of your client’s area of medicine to opine to the applicable standard of care.

In every medical malpractice case in Pennsylvania where the claimed malpractice is not obvious and is being challenged by the defense, a qualified expert must provide testimony regarding the applicable standard of care. Pennsylvania’s Medical Care Availability and Reduction of Error Act (MCARE) mandates that an expert testifying to a physician’s standard of care must be: (1) substantially familiar with the applicable standard of care at issue; and (2) practice in the same subspecialty as the defendant physician or in a subspecialty with a substantially similar standard of care for the issue at hand.

Recently, in Frey v. Potorski, 2016 Pa. Super. LEXIS 475 (Pa.Super. Aug. 26, 2016), at issue was whether the defendant, an interventional cardiologist, took all necessary steps within the standard of care to ensure that the patient’s blood would not clot during a necessary percutaneous coronary intervention (PCI) procedure. The Pennsylvania Superior Court held that a physician with a different subspecialty than the defendant physician was qualified to provide standard of care testimony, along with another defense expert physician who shared the same specialty as the defendant. Specifically, the Frey court allowed a hematologist to opine to the standard of care regarding correct dosages of anticoagulation drugs prior to the PCI procedure.

Prior to trial, the plaintiff filed a motion in limine to preclude the hematologist from offering opinions on whether the defendant interventional cardiologist’s administration and dosage of anticoagulants prior to the start of the PCI procedure was in accordance with the standard of care. The plaintiff’s argument was that the standard of care in the fields of hematology and cardiology were not substantially similar. The trial court disagreed and held that they were substantially similar in the discrete area where the hematologist would render his opinion, namely, whether the interventional cardiologist selected the appropriate drug and dosage of anticoagulant so that the patient’s blood would not clot during the PCI procedure.

At trial, the plaintiff presented testimony of an interventional cardiologist who testified that the defendant violated the standard of care by failing to conduct an activated clotting time test to determine the plaintiff decedent’s actual clotting time after receiving heparin and prior to the start of the PCI procedure. The defense presented a competing interventional cardiologist who testified that determining the plaintiff’s activated clotting time was not necessary under the appropriate standard of care because the patient had been on a regimen of aspirin and had been administered two anticoagulants—600 milligrams of Plavix and 5,000 units of Heparin—prior to the PCI.

In addition to the competing interventional cardiologist, the defense also presented a hematologist whose particular expertise was in the treatment of clotting, coagulation, and bleeding and thrombosis. The hematologist also testified that he frequently consulted with interventional cardiologists prior to PCI procedures regarding blood clotting issues. The hematologist provided the opinion that the particular drugs (Plavix and Heparin) and the dosage of those drugs would produce the necessary anti blood clotting necessary to proceed with the PCI procedure.

The plaintiff appealed to the Pennsylvania Superior Court, claiming the defense hematologist was not qualified to testify to the standard of care for an interventional cardiologist under the MCARE Act. The crux of the plaintiff’s argument was that, as a hematologist who did not personally perform PCI procedures, he was not qualified to testify to the standard of care applicable to an interventional cardiologist. The Superior Court disagreed.

The court opined that the hematologist specifically limited his testimony to the standard of care necessary to the administration of anticoagulation medication prior to a PCI procedure. His particular expertise in clotting, coagulation, bleeding and thrombosis, as well has his experience consulting on the proper dosages to be administered prior to PCI procedures, allowed him to testify that the 5000 units of Heparin given to the decedent comported with the standard of care.

Accordingly, in addition to establishing that a physician with a different subspecialty to the defendant can still opine on standard of care issues under MCARE, this opinion is extremely helpful to the defense bar because it allows multiple defense experts to opine to the standard of care. When defending a physician in a medical malpractice case, thought should be given to whether a subspecialist should also be retained as a second expert to render an opinion on the applicable standard of care. If there is a discrete issue within the standard of care that can be competently addressed by an expert in a different field of medicine, Frey allows the defense to admit additional expert testimony on the standard of care. As was the case in Frey, additional expert testimony on the standard of care, and how a physician defendant acted appropriately within that standard, can go a long way toward securing a defense verdict. At times, two is better than one.

*Jack is a shareholder in our Philadelphia, Pennsylvania office who can be reached at 215.575.2787 or jcfarrell@mdwcg.com. Dan is an associate in our Philadelphia office who can be reached at 267.519.6574 or dedolente@mdwcg.com.

¤

_{Defense Digest, Vol. 22, No. 4, December 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}