Imschweiler R. and J. v. Weizer, I. ( 2014 )

J-A18009-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RACHEL IMSCHWEILER AND JARED : IN THE SUPERIOR COURT OF
IMSCHWEILER, : PENNSYLVANIA
:
Appellants :
:
v. :
:
ILENE KATZ WEIZER, M.D., JAMES :
XENOPHON, M.D. AND A WOMAN S :
CARE OB-GYN, P.C., :
:
Appellees : No. 1680 MDA 2013
Appeal from the Order entered on August 27, 2013
in the Court of Common Pleas of Schuylkill County,
Civil Division, No. S-218-2010
BEFORE: LAZARUS, WECHT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2014
Rachel Imschweiler ( Rachel ) and Jared Imschweiler ( the
Imschweilers ) appeal from the Order1 denying their Post-Trial Motion in
their negligence case against Ilene Katz Weizer, M.D. ( Dr. Katz Weizer ),
James Xenophon, M.D. ( Dr. Xenophon ), and A Woman s Care Ob-Gyn, P.C.
( the Practice ) (collectively, Defendants ). We reverse and remand for a
new trial.
1
Generally, an appeal will only be permitted from a final order unless
otherwise permitted by statute or rule of court. Johnston the Florist, Inc.
v. TEDCO Constr. Corp., 657 A.2d 511, 514 (Pa. Super. 1995). An appeal
from an order denying post-trial motions is interlocutory. Id. However, in
Johnston the Florist, this Court, regarding as done that which ought to
have been done, considered the merits of the appeal. Id. at 514-15.
Although the Imschweilers purportedly appeal from the Order denying their
Post-Trial Motion, pursuant to Johnston the Florist, we will consider the
appeal as being properly before this Court.
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The trial court summarized the relevant history underlying the instant
appeal as follows:
On August 14, 2009, [Rachel] gave birth to a healthy 9
pound 4 ounce boy. After a lengthy labor, the baby was
delivered through a C-Section at 11:25 p.m. by Dr.
Katz[]Weizer. The [Imschweilers] found no fault with Dr.
Katz[]Weizer s prenatal care or her care of [Rachel] during the
delivery.
Following the birth, [Rachel] was taken to the hospital s
intensive care unit (ICU), which doubles as a recovery room on
weekends. Initially, [Rachel] did well post-operatively, but
shortly before 1:00 a.m. on August 15, 2009, her blood pressure
began to drop.
[All parties] agreed that [Rachel] had developed a
when a woman s uterus loses tone and fails to properly contract.
Normally, the contraction of the uterus after birth serves to slow
down the flow of blood from the uterine blood vessels, which
provide copious amounts of blood to the placenta during the
pregnancy. When the uterus fails to contract, the blood
continues to flow and the patient bleeds vaginally.
A sure way to stop the bleeding would have been for Dr.
Katz[]Weizer to perform a hysterectomy, removing [Rachel s]
uterus; but [Rachel] was still young and wanted to preserve her
ability to have more children if at all possible. Unfortunately, by
early afternoon that day, her uterus was removed at the Lehigh
Valley Hospital [( the Hospital ),] where she had been
transferred at Dr. Katz[]Weizer s request. Her ovaries were left
intact
Trial Court Opinion, 8/27/13, at 1-2.
The Imschweilers filed the instant negligence action against
Defendants. After a one-week trial, the jury found in favor of the
Defendants. The Imschweilers filed a Motion for judgment notwithstanding
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the verdict or a new trial, which the trial court denied. Thereafter, the
Imschweilers filed the instant timely appeal.
The Imschweilers present the following claims for our review:
A. Whether the trial court erred in ruling that [the Imschweilers ]
expert testimony did not satisfy the causation element of
their cause of action with respect to the theories of delay in
returning to surgery, delay in transfer to a tertiary care
center, or delay in obtaining interventional radiology services
by [] Dr. Katz Weizer[?]
B. Whether the trial court erred in removing disputed facts on
the issue of causation from the jury s consideration[?]
C. Whether the trial court erred in ruling that [the Imschweilers]
were precluded from arguing the increased risk of harm
causation theory in closing argument, based solely on
comments during closing argument and without objection by
defense counsel[?]
D. Whether the trial court erred in ruling that Defendant[s ]
medical expert satisfied the requirements [of] 40 Pa.C.S.[A.]
§ 1303.512, in finding that Defendant[s ] medical expert was
qualified to testify on standard of care issues[?]
Brief of Appellants at 5.
The Imschweilers first two claims challenge the trial court s entry of
nonsuit as to their negligence claim based on Dr. Katz Weizer s unreasonable
delays in returning Rachel to surgery, transferring Rachel to a tertiary care
facility, and seeking interventional radiology services, thereby increasing the
risk that Rachel would lose her uterus. Id. at 15. Specifically, the
Imschweilers challenge the trial court s determination that the testimony of
their expert witness was speculative. Id. According to the Imschweilers,
they presented expert testimony sufficient to establish that Dr. Katz Weizer
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increased the risk of harm by not returning Rachel to surgery by 3:30 a.m.
Id. The Imschweilers argue that the evidence established that the delay in
returning Rachel to surgery and the subsequent delay in transferring her to
a tertiary care facility took away any opportunities for the physicians at
Lehigh Valley Hospital to salvage her uterus, thus increasing the risk of
harm. Id. According to the Imschweilers, the trial court s ruling improperly
granted nonsuit as to their claim of negligence based upon the alleged
delays. Id. at 16.
A trial court may enter a compulsory nonsuit on any and all causes of
action if, at the close of the plaintiff s case against all defendants on liability,
the court finds that the plaintiff has failed to establish a right to relief.
Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 595 (Pa. 2012).
Whether in a particular case that standard [plaintiff s burden of
preponderance of the evidence] has been met with respect to
the element of causation is normally a question of fact for the
jury; the question is to be removed from the jury s consideration
only where it is clear that reasonable minds could not differ on
the issue. In establishing a [prima facie] case, the plaintiff need
not exclude every possible explanation ; it is enough that
reasonable minds are able to conclude that the preponderance of
the evidence shows defendant s conduct to have been a
substantial cause of the harm to plaintiff.
Hamil v. Bashline, 392 A.2d 1280, 1284-85 (Pa. 1978); accord Summers
v. Certainteed Corp., 997 A.2d 1152, 1163 (Pa. 2010).
Because medical malpractice is a form of negligence, to state a prima
facie cause of action, a plaintiff must demonstrate
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a duty owed by the physician to the patient, a breach of that
duty by the physician, that the breach was the proximate cause
of the harm suffered, and the damages suffered were a direct
result of harm. With all but the most self-evident medical
malpractice actions there is also the added requirement that the
plaintiff must provide a medical expert who will testify as to the
elements of duty, breach, and causation.
Griffin v. Univ. of Pittsburgh Med. Center-Braddock Hosp., 950 A.2d
996, 999-1000 (Pa. Super. 2008). The plaintiff proves the duty and breach
elements by showing that the defendant s act or omission fell below the
standard of care and, therefore, increased the risk of harm to the plaintiff.
Thierfelder v. Wolfert, 52 A.3d 1251, 1264 (Pa. 2012).
Regarding expert testimony, we observe that
[a]n expert witness proffered by a plaintiff in a medical
malpractice action is required to testify[,] to a reasonable degree
of medical certainty, that the acts of the physician deviated from
good and acceptable medical standards, and that such deviation
was the proximate cause of the harm suffered. However, expert
witnesses are not required to use magic words when
expressing their opinions; rather, the substance of their
testimony must be examined to determine whether the expert
has met the requisite standard. Moreover, in establishing a
prima facie case, the plaintiff [in a medical malpractice case]
need not exclude every possible explanation of the accident; it is
enough that reasonable minds are able to conclude that the
preponderance of the evidence shows the defendant s conduct to
have been a substantial cause of the harm to [the] plaintiff.
Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 155 (Pa. 2009) (citations
and some internal quotation marks omitted).
Regarding the Imschweilers theory of liability based upon increased
risk of harm, this Court has observed that direct causation and increased
risk of harm are not mutually exclusive, but simply alternative theories of
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recovery which, depending on the facts and the expert testimony, may both
apply in a given case. Klein v. Aronchick, 85 A.3d 487, 494 (Pa. Super.
2014). A plaintiff is entitled to an instruction on increased risk where there
is competent medical testimony that a defendant s conduct at least
increased the risk that the harm sustained by the plaintiff would occur. Id.
at 495.
Our review of the record discloses that at trial, the Imschweilers
presented the expert testimony of Dr. Borden . Dr.
Borden testified that the first problem arose, after the C-section delivery of
Rachel s child, around 1:00 a.m. N.T., 5/15/13, at 524. Dr. Borden testified
that in trying to remove blood and clots from Rachel s uterus, Dr. Katz
Weizer first tried fundal massage. Id. at 527. Dr. Borden described the
procedure and its purpose as follows:
[W]hat you re trying to do is you re trying to get that uterus to
clamp down, to cramp down. When it s got things inside, it s
less likely to do that. So if there clots,
the clots stay there. So if you ve got lots of clots within the
cavity of the uterus, it s even less likely to clamp down. And so
you want to evacuate those clots. You want to massage, we call
it fundal massage the uterus from the abdomen. And you re
massaging the uterus, getting out as much of the blood as you
can because what you want is you want that uterus to clamp
down and stay clamped down.
Id. at 526. Dr. Borden confirmed that from 2:20 a.m. to 3:30 a.m., the
procedure was done three times, and by 6:00 a.m., the procedure had been
done six times. Id. at 526-27. According to Dr. Borden,
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if it s not working after two or three times, it s not going to work
for you to continue just to do that. And also, every time you re
doing this, the patient s awake. You
patient. And it
the vagina trying to get those clots all the way up from as high
up, very uncomfortable, very painful. And if it s not working
within two to three times, it s not going to work to continue to
do it. You have to do something else.
Id. at 527. Dr. Borden opined that by 3:30 a.m.,
the decision should have been made that [Dr. Katz Weizer] had
to go in and do the surgery that she did, you know, two and a
half hours or so later. That would have prevented less blood loss
to continue and hopefully would have ended the situation had it
been done without a laceration occurring. Again, as I say, the
laceration is a risk of that procedure. But it should have been
noted and should have been identified at that time and repaired.
But that procedure that she ultimately did at around 6:00
in the morning should have been done around 3:30 to
4:00 in the morning.
Id. at 527-28 (emphasis added).
Dr. Borden further testified as follows:
Q. [The Imschweilers counsel]: Doctor, did the delays as you
describe by Dr. Katz[]Weizer in taking Rachel [] back to surgery,
did those delays affect the chances of saving her uterus?
A. [Dr. Borden]: Yes.
Q. And how so?
A. Just add the time, time I mean, so much time is lost in
terms of doing what was done after the initial diagnosis of
postpartum hemorrhage was made. Ultimately, by the time she
left Schuylkill to get to another institution that could more likely
than not be a better place to help her, it was too late for them to
do anything but to remove her uterus. Had the procedure
been done sooner, had there been the identification of the
laceration, I think the problem would have been ended by
the B-Lynch and no further issues as far as bleeding from
a laceration. But if she continued bleeding, she needed to
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be gotten out of here much sooner to a tertiary care
center where they would have had the ability to do more
and potentially save her uterus.
Q. You told us earlier that at the point in time that [Orion A.
Rust, M.D. ( Dr. Rust ),] took over the care of this patient, I
believe your words were he was essentially out of time. Why
was he out of time at that point?
A. This patient had been hemodynamically unstable for hours.
She had just been airlifted after multiple hours in an institution
here where the postpartum hemorrhage could not be treated
and solved. I think, as I mentioned before, she had twice the
volume of a human being s blood volume transfused. By so
much blood loss, by so much blood replacement, there was no
time for Dr. Rust to do anything.
Fearful of disseminated intravascular coagulopathy would
have been foremost on his mind or should have been foremost
on his mind as well besides the fact that she was
hemodynamically, had been hemodynamically unstable for such
a period of time.
Q. Doctor, the failure to detect the laceration during the
laparotomy procedure at 6:00 a.m., did that have an effect on
whether Rachel uterus could be saved?
A. Yes.
Q. And how so?
A. It allowed for continued bleeding to occur. And until that
laceration was either repaired or until the uterus was removed,
she would have continued bleeding.
Q. In other words
A. Nothing else would have worked at that point in time.
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Q. Did the delay between the exploratory laparotomy
and Dr. Rust taking this patient to surgery and the delay
in getting Rachel [] back to surgery at Schuylkill Medical
Center as you discussed, did that delay increase the risk
that her uterus would be lost?
[A.] Yes.
Q. And how so?
A. The delay ultimately gave Dr. Rust no other option but
to remove her uterus. All of that length of time that had gone
by had, as I said, [sic] so much blood loss, so much
manipulation to the uterus, all of that, by the time he got her at
Lehigh Valley, his concern was basically to save her life. And the
only way that he could do that for certain to stop the bleeding,
that it wouldn t continue regardless of what would have been to
remove her uterus, which was where the bleeding was coming
from. There was no other option he had by the time he took
control of [Rachel s] life.
Q. Now, had Dr. Rust gotten this patient sooner than he did,
sooner than 1:00 p.m., approximately the next day, what could
he have done? What would have been done for [her] at a
tertiary care center?
[A.] Again, with her arriving at Lehigh hours earlier, he
could have, when he opened her, had much greater time
to identify, to look at all of the contents of the pelvis and
to define this laceration and then repair it and see what
happened[,] to see whether the bleeding stopped at that
point in time. That s all that it might have taken.
I think without identification of that laceration, I don t
think that an interventional radiologist at Lehigh Valley would
have been successful in stopping the bleeding. I think the
bleeding would have continued because of the laceration. So the
only thing would have been for him to reopen her and take his
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time and effort to check everything out at that time before
removing the uterus had she not had all those blood
transfusions, had she not had all of those hours spent bleeding.
Id. at 540-42, 554-56 (emphasis added). Dr. Borden further opined that
Dr. Katz[]Weizer initially handled the beginning of the
postpartum hemorrhage within a standard of care. But within an
hour or so with no control, with continued postpartum care, [sic]
delayed accepted medical treatment allowed a situation to
progress and develop and worsen.
Ultimately, Dr. Katz[]Weizer decided she needed to
operate on [Rachel] again. That decision should have been
made several hours earlier than it was. During the
procedure, I believe a laceration occurred that was not
recognized at the time by both Dr. Katz[]Weizer and Dr.
Xenophon that should have been. And, also, I believe there was
a prolonged delay in transferring the patient --- [.]
Id. at 510 (emphasis added).
Dr. Borden also testified as follows regarding the delay in transferring
Rachel to a tertiary care facility:
This patient continued bleeding from somewhere around 1
o clock the morning on and on and on. And nothing that was
done to try to stop the bleeding was successful. And this patient
should have been transferred much earlier than she was from
Schuylkill Medical Center to a receiving hospital that was more
capable in taking care of that problem at that point in time. The
longer the delay, the more risk to the patient and ultimately
what I think was the loss of her uterus that could have been
avoided had she been transferred out sooner.
Id. at 515-16. Dr. Borden opined that,
because of the continued delay both in the initial exploration to
try to stop the bleeding because of the failure to recognize the
laceration and repair it, the hemorrhage continued. The patient
lost more than twice the volume of her blood, her total blood.
More than twice of that was lost because that s at least what
they replaced. So her situation was extremely critical.
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I think by the time she was transferred to Lehigh Valley, there
was nothing else that could have been done to save her life
other than to remove the uterus. I think Dr. Rust quickly, as
quickly as possible, explored the patient and removed her uterus
Id. at 517-18. Dr. Borden rendered his opinion within a reasonable degree
of medical certainty. Id. at 557.
Carol Miller-Schaeffer, M.D. ( Dr. Schaeffer ), testified that she was
contacted for a consult as to Rachel s condition. N.T., 5/14/13, at 370. Dr.
Schaeffer stated that upon arriving at the ICU at Schuylkill Hospital,
sometime after 10:00 a.m., the morning after Rachel s C-Section, she
observed that Rachel was still bleeding. Id. at 374. According to Dr.
Schaeffer, blood was pretty much running out [of Rachel] as fast as we
could put it in. Id. at 375. At the time that Dr. Schaeffer saw Rachel,
Rachel had received 11 units of blood, two units of frozen plasma, and 10
plus liters of IV fluid. Id. at 379-80. Dr. Schaeffer testified as to her
concern that Rachel could develop a coagulopathy. Id. at 387. Ultimately,
Dr. Schaeffer recommended to Dr. Katz Weizer that Rachel be transferred to
a tertiary care facility:
It was my opinion at that point that the patient was bleeding.
The fact that her blood counts were dropping, her platelet count
was dropping, her coagulation studies were getting worse, that
her condition could continue to deteriorate. I did not feel that I
nor the hospital was equipped to care for her any further. There
are not experts at the hospital available at all times to care for
somebody whose condition continues to deteriorate and,
therefore, it was my recommendation that she went to a tertiary
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care center where there were more specialists available to deal
with problems should they worsen.
Id. at 392. Dr. Schaeffer further stated that, I think at that point the
situation had deteriorated further that even if it was a hysterectomy, that s
what was needed to be done to save [Rachel s] life. Id. at 395.
Dr. Rust, the surgeon who ultimately performed a hysterectomy on
Rachel, testified that upon Rachel s arrival at Lehigh Valley Hospital, he
discussed with her the treatment options available:
The options that we talked about and when she first came in is
that first we discussed her condition, that she was in a serious
but stable condition and if she continued to bleed, that a
hysterectomy would most likely be indicated. And the reason for
that is invasive radiology procedures can only be done if you
have two main things: The time to do them and the people to
do them.
And at that particular time, I was uncertain about both as far as
the time because if she continued to bleed, then there wouldn t
be time. And if there was and I had to see if our invasive
people this is a Saturday morning. Usually they re around, but
that they don t have another
patient that they re working on. Or if they did, then to see if
another crew was available I needed to check on the time and
the personnel.
N.T. 5/16/13, at 821. According to Dr. Rust, he discussed with Rachel his
intention to save her uterus, if possible:
That would have been ideal, if possible. And the key to that is
how much more bleeding she was going to be doing. Right now,
she was serious but stable. But in cases of uterine atony or
prolonged vaginal bleeding, that there can be more
bleeding and we were already in serious condition.
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Id. at 822 (emphasis added). However, Dr. Rust testified that he made the
decision to conduct a hysterectomy very shortly thereafter:
It actually was a pretty short time because I met her in the
emergency room, did the physical exam, went over the case with
Dr. Galic, who was my assistant that day. And literally, before
we finished her discussion, [Rachel] started to bleed significantly
again.
Id. Dr. Rust explained to Rachel that
I was concerned that if we waited any longer or if we tried to do
any other procedures, that her health and status at that time
could deteriorate and that she was in danger of serious harm or
death.
Id. at 822-23.
We note that Dr. Rust also testified that the laceration could not have
been seen without conducting a hysterectomy. Id. at 832. However, Dr.
Borden testified that the laceration was an extension of the C-Section
incision. N.T., 5/15/13, at 534. Dr. Borden opined that the laceration was
in an area that could have been detected during the exploratory laparotomy.
Id. at 535. Dr. Borden testified that the ligament would not have obstructed
the ability to detect the laceration:
Not throughout the entire length of this laceration because it
emanated from where the Cesarean scar I shouldn t say scar
the Cesarean incision was done. That s not covered by the
broad ligament. The area right continuing from that is not
covered by the broad ligament.
Id. at 537.
Based upon the foregoing, we conclude that Dr. Rust s testimony, and
the contradictory testimony of Dr. Borden, do not support the entry of
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nonsuit as to the issue of delay. As the trial court stated in its Opinion,
[c]redibility issues are for the jury, not for an expert to resolve. Trial
Court Opinion, 8/27/13, at 23; see Griffin, 950 A.2d at 999 (stating that,
[c]oncerning questions of credibility and weight accorded the evidence at
trial, we will not substitute our judgment for that of the finder of fact ).
Our review discloses that the Imschweilers presented sufficient
evidence for a jury to evaluate whether Dr. Katz Weizer s delay in returning
Rachel to surgery and in transferring Rachel to a tertiary care facility
deviated from the standard of care and increased the risk of a hysterectomy.
Accordingly, the trial court erred in entering nonsuit as to the Imschweilers
theory of liability based upon increased risk of harm resulting from these
delays. Therefore, we reverse the entry of nonsuit, and remand for a new
trial as to the theories of liability premised upon the delay in returning
Rachel to surgery and in transferring Rachel to a tertiary care facility.
The Imschweilers also advanced an increased risk of harm theory of
liability based upon Dr. Katz Weizer s delay in seeking an interventional
radiologist. Our review of the record discloses that the Imschweilers failed
to present prima facie evidence that Dr. Katz Weizer s delay in seeking an
interventional radiologist increased the risk of harm to Rachel. Dr. Borden,
the Imschweilers expert, testified regarding this issue as follows:
I think without the identification of the laceration, I don t think
that an interventional radiologist at Lehigh Valley would have
been successful in stopping the bleeding. I think the bleeding
would have continued because of the laceration. So the only
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thing would have been for [Dr. Rust] to reopen her and take his
time and effort to check everything out at that time before
removing the uterus had she not had all those blood
transfusions, had she not had all those hours of time spent
bleeding.
N.T., 5/15/13, at 556. Accordingly, as to this theory of liability, the trial
court s entry of nonsuit was proper.
The Imschweilers next claim that the trial court erred in removing
disputed issues of fact from the jury s consideration. Brief of Appellants at
32. According to the Imschweilers, they presented evidence supporting their
theories of liability
that Dr. Katz Weizer negligently delayed in returning [Rachel] to
a surgery by 3:00 a.m. on August 15[,] and negligently delayed
transferring [Rachel] to a tertiary care center in view of the
postpartum hemorrhage and that these delays took away any
opportunity for the physicians at Lehigh Valley Hospital to
Id. This issue implicates the trial court s entry of nonsuit as the theory of
liability based upon the increased risk of harm caused by Dr. Katz Weizer s
delays.
As set forth above, we conclude that the trial court improperly granted
nonsuit as to the theories of liability premised upon the delays. Accordingly,
we need not separately address this claim.
The Imschweilers next claim that the trial court erred in precluding
them from arguing increased risk of harm during closing arguments. Brief
of Appellants at 36. The Imschweilers state that during their closing
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argument, the trial court interrupted and called for a conference with all
counsel. Id. According to the Imschweilers,
[t]he [trial c]ourt advised that it was not going to charge the
jury on the increased risk of harm causation theory as counsel
had argued to the jury that only the laceration was causing the
bleeding following the exploratory laparotomy[,] and not a
combination of atony and the laceration. The [trial c]ourt
improperly based its ruling on the content of closing argument,
not on any new evidence presented by a witness.
Id.As set forth above, we are remanding this matter for a new trial on the
issue of increased risk of harm. Accordingly, we need not address this
claim.
In their next claim, the Imschweilers argue that the trial court erred in
ruling that defense expert Nancy Roberts, M.D. ( Dr. Roberts ), was
competent to testify on medical standard of care issues, in violation of the
Medical Care Availability and Reduction of Error Act ( MCARE ), 40 P.S.
§ 1303.512. Brief of Appellants at 38. According to the Imschweilers, on
cross-examination, Dr. Roberts testified that she last performed a delivery in
November 2005, last performed a B-Lynch suturing procedure in 2004, and
last performed surgery of any kind in 2005. Id. The Imschweilers point out
Dr. Roberts testimony that she supervised a small number of medical
students from a local medical school. Id. Finally, the Imschweilers direct
our attention to Dr. Roberts testimony, on cross-examination, that her
practice has been limited to performing ultrasounds four days a week, and
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performing administrative duties one day a week. Id. Because Dr.
Roberts s qualifications do not meet the qualifications for expert testimony
mandated by section 512(b)(2) of MCARE, the Imschweilers claim, the trial
court erred in deeming Dr. Roberts qualified as a medical expert on standard
of care and causation. Brief of Appellants at 31.
Decisions regarding admission of expert testimony, like other
evidentiary decisions, are within the sound discretion of the trial court. We
may reverse only if we find an abuse of discretion or error of law. Weiner
v. Fisher, 871 A.2d 1283, 1285 (Pa. Super. 2005).
MCARE section 512 provides, in relevant part, that
[a]n expert testifying on a medical matter, including the
standard of care, risks and alternatives, causation and the
nature and extent of the injury, must meet the following
qualifications:
(2) Be engaged in or retired within the previous five years
from active clinical practice or teaching.
Provided, however, the court may waive the requirements of this
subsection for an expert on a matter other than standard of care
if the court determines that the expert is otherwise competent to
testify about medical or scientific issues by virtue of education,
training or experience.
(c) Standard of Care.- In addition to the requirements set forth
in subsections (a) and (b), an expert testifying as to a
physician s standard of care must also meet the following
qualifications:
(1) Be substantially familiar with the applicable standard
of care for the specific care at issue as of the time of the
alleged breach of the standard of care.
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(2) Practice in the same subspecialty as the defendant
physician or in a subspecialty which has a substantially
similar standard of care for the specific care at issue,
except as provided in subsection (d) or (e).
(3) In the event the defendant physician is certified by
an approved board, be board certified by the same or a
similar approved board, except as provided in subsection
(e).
40 P.S. § 1303.512(b), (c).
In its Opinion, the trial court explained its decision to accept Dr.
Roberts s qualifications as follows:
Dr. Roberts had neck surgery[,] which has prevented her from
delivering babies or performing hysterectomies since 2005, but
she consults in caring for women with post-partum
hemorrhages, including within the six months preceding trial and
numerous cases of uterine atony. She is also actively involved
in teaching medical students in the area of obstetrics.
Trial Court Opinion, 8/27/13, at 28. The trial court s determination is
supported in the record.
Dr. Roberts testified that as an inpatient consultant,
I take care of an unusually large amount of women with
antepartum hemorrhage; and the reason is that four days a
week, I do ultrasounds. And women are referred to high risk
specialists such as I am for ultrasounds because they re having
vaginal bleeding and they re looking to figure out why it
happened. And if I make a diagnosis, let s say a placenta
abnormality, they re looking to find out how to follow the
patient, what tests need to be done, when to deliver the patient,
and how to deliver them.
N.T., 5/15/13, at 658. Dr. Roberts explained that she had cared for many
patients with uterine atony, and is considered an expert in that condition.
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J-A18009-14
Id. at 660. Dr. Roberts testified that she is the chairperson responsible for
the care of the patients in the Lehigh Valley healthcare system. Id. at 661.
According to Dr. Roberts,
I am primarily a clinician. I mean I see patients four days a
e is not, is not doing research.
It s taking care of patients myself, and then, of course, I m
teaching.
Id. at 665. Dr. Roberts testified that she is involved in lecturing medical
students in obstetrics and gynecology, and sees patients with the residents
at the high risk clinic. Id. at 666. Upon review, we discern no abuse of
discretion by the trial court in deeming Dr. Roberts qualified as an expert
under MCARE.
Order affirmed in part and reversed in part; case remanded for a new
trial consistent with this Memorandum; Superior Court jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
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