November 01, 2016

Subsection (e) of the MCARE Act Swallows the Rule

The MCARE Act requires experts offering standard of care testimony to practice in the same subspecialty or possess the same board-certification as the defendant physician.  However, these requirements may be waived by the court under "Subsection (e)" if the "expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period." 40 P.S.§ 1303.512(e).  Beginning with Vicari v. Spiegel in 2010 (holding that an oncologist could opine on the standard of care applicable to otolaryngologists and radiation oncologists), courts have interpreted the Subsection (e) exception liberally. This trend continued this past summer in Frey v. Potorski, 2016 PA Super 190.

In Frey, the plaintiff alleged, among other things, that the defendant interventional cardiologist improperly dosed anticoagulants prior to the patient's stent procedure.  The defense called two experts — an interventional cardiologist and a hematologist — to opine that the defendant's anticoagulant dosing comported with the standard of care.  The hematologist claimed to be familiar with the standard of care applicable to interventional cardiology because he frequently consults with interventional cardiology regarding anticoagulant dosing during cardiac procedures.  The hematologist admitted he was not an expert on the placing of stents, coronary anatomy, or the propensity for clotting in coronary dissection.  The trial ended in a defense verdict, and the plaintiff appealed on the grounds that the hematologist was not qualified to render standard of care testimony under the MCARE Act.

The Superior Court upheld the defense verdict.  The Frey Court was impressed with the hematologist's regular consults with interventional cardiology, and deemed that the two specialties were related on the issue of anticoagulant dosing during cardiac procedures.  Thus, the hematologist could define the standard of care applicable to interventional cardiologists under the Subsection (e) exception.

The Superior Court's decision illustrates the flaws in the liberal interpretation of Subsection (e).  The hematologist's opinion was actually the standard of care governing hematologists when consulted by interventional cardiology about anticoagulant dosing.  The fact that interventional cardiology consults hematology about anticoagulant dosing, and the fact that hematologists do not perform cardiac procedures, illustrates that the two specialties have disparate perspectives and concerns in their approaches to patient care.  If interventional cardiology relies solely on hematology's recommendation, then the standard of care for interventional cardiology regarding anticoagulation is to consult hematology (i.e., there is no standard of care on the specifics of anticoagulant dosing).  Alternatively, if interventional cardiology merely considers the recommendation of hematology, it is evident that interventional cardiology is weighing hematology's recommendation with considerations specific to interventional cardiology, considerations to which hematology is not privy.  Under no scenario should a hematologist opine on the standard of care required of an interventional cardiologist regarding the specifics of anticoagulant dosing.

What It Means to You

Medicine is a collaborative field.  Based on the courts' interpretation of Subsection (e), we should expect a standard of care arms race to recruit experts in specialties, which touch upon the actual specialty in the dock.  Rather than addressing this problem through Subsection (e), the better — and less complicated — approach, may be to argue that multiple standard of care opinions are needlessly cumulative.  Both judge and jury are receptive to the idea of shorter trials.