In its non-precedential written decision filed on March 27, 2017, the Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) affirmed the nonsuit of the plaintiff’s legal malpractice lawsuit filed against her former medical malpractice lawyer that alleged that the defendant lawyer breached the standard of care that applied to him in his representation of the plaintiff in her medical malpractice case by not filing a required certificate of merit, leading to a judgment of non pros being entered and the plaintiff’s medical malpractice case being dismissed.
The legal malpractice plaintiff sought a continuance of her legal malpractice trial, alleging that the defendant’s lawyer advised the plaintiff’s lawyer shortly before trial that her medical expert who was designated to testify during the legal malpractice trial regarding the breach of the standard of care in the underlying medical malpractice claim had signed a consent judgment in another case in which he agreed not to testify against the defendant hospital or any of its physicians in any pending or future cases, and therefore he could not testify in the plaintiff’s legal malpractice case.
The trial judge denied the plaintiff’s motion for continuance. At the beginning of trial, the trial judge granted the defendant lawyer’s motion in limine that precluded the plaintiff’s medical expert from testifying because he was not qualified under the MCARE Act. The trial judge also granted the defendant’s oral motion for nonsuit on the basis that the plaintiff did not have a medical expert qualified to testify.
Citing a prior Pennsylvania Supreme Court case, the Pennsylvania Appellate Court stated that with passage of the MCARE Act, the Pennsylvania General Assembly created a more stringent standard for admissibility of medical expert testimony in a medical malpractice action by the imposition of specific additional requirements not present in the common law standard: pursuant to Section 512, to testify on a medical matter in a medical malpractice action against a defendant physician, an expert witness must be a licensed and active, or a recently retired, physician. In addition, in order to render an opinion as to the applicable standard of care, the expert witness must be substantially familiar with the standard of care for the specific care in question. Furthermore, the expert witness must practice in the same subspecialty as the defendant physician, or in a subspecialty with a substantially similar standard of care for the specific care at issue (i.e., the same specialty requirement). If the defendant physician is board certified, the expert witness must be board certified by the same or a similar board (i.e., the same board certification requirement). Importantly, the expert witness must meet all of these statutory requirements in order to be competent to testify. However, there is an exception to the same specialty and same board-certification requirements: if a court finds that an expert witness has sufficient training, experience, and knowledge to testify as to the applicable standard of care, as a result of active involvement in the defendant physician’s subspecialty or in a related field of medicine, then the court may waive the same specialty and same board certification requirements.
The Pennsylvania Appellate Court held in the case it was deciding that because the plaintiff’s medical expert no longer practices as an orthopedic surgeon, he does not meet the standards set forth by the MCARE Act to testify as an expert against an orthopedic surgeon (the defendant in the underlying medical malpractice case). The Pennsylvania Appellate Court further held that there was no abuse of discretion on the part of the trial court in denying the plaintiff’s request for a continuance (“It is clear that the trial court did not exhibit ‘partiality, prejudice, bias, or ill-will’ in reaching its conclusion [in denying the continuance because the plaintiff’s medical expert was otherwise unable to testify and the plaintiff’s legal malpractice attorney had that information available for more than two weeks prior to trial]; thus, we will not disturb it”).
Source Rutyna v. Schweers, J-A33042-16
It is ironic that the plaintiff’s legal malpractice case was based on her former medical malpractice lawyer’s failure to obtain a medical expert, and her legal malpractice case was dismissed because she did not have a required medical expert to testify in that case.
If you or a loved one suffered serious injury (or worse) as a result of medical negligence in Pennsylvania or in another U.S. state, you should promptly find a Pennsylvania medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.
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