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Amaya v. York Hospital

January 3, 2006

MARIA AMAYA, PLAINTIFF
v.
YORK HOSPITAL, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is defendants' motion in limine (Doc. 18) to preclude plaintiff from offering: (1) expert testimony of Eric M. Wassermann, M.D. ("Dr. Wassermann") regarding the standard of care for the administration of Tissue Plasminogen Activator ("tPA") by a board-certified emergency medicine physician; (2) statements, positions, or practice guidelines from any non-emergency medical care society by expert Ira Mehlman, M.D. ("Dr. Mehlman") for the purpose of establishing the standard of care of a board-certified emergency medicine physician; and (3) evidence of future medical expenses that will be covered by Medicare. For the reasons that follow, the court will deny the motion in part and defer rendering a decision in part until trial.

I. Dr. Wassermann's Expert Testimony

Defendants' motion in limine seeks to exclude Dr. Wassermann's testimony regarding the standard of care for the administration of tPA by a board-certified emergency medicine physician.*fn1 In a medical malpractice case under Pennsylvania law,*fn2 plaintiff must provide a medical expert to testify to the applicable standard of care.*fn3 See Toogood v. Rogal, 824 A.2d 1140, 1145 (Pa. 2003); see also Miville v. Abington Mem'l Hosp., 377 F. Supp. 2d 488, 491 (E.D. Pa. 2005). Under section 512(c) of the Pennsylvania Medical Care Availability and Reduction of Error Act ("MCARE"), an expert must meet the following qualifications to be competent to testify as to the applicable standard of care:

(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.

(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 . . . .

(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board . . . .

40 PA. CONS. STAT. ANN. § 1303.512(c) (West 2003).*fn4 An exception to sections 512(c)(2) and (3) exists where a physician "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 PA. CONS. STAT. ANN. § 1303.512(e).*fn5

Defendants contend that, under section 512(c)(2) of MCARE, Dr. Wassermann is not competent to testify regarding the standard of care because he is a neurologist, not an emergency department physician or resident like defendants. Defendants also contend that Dr. Wassermann does not satisfy the requirements of section 512(c)(3) of MCARE or its exception because he is not board-certified in emergency medicine.

Defendants' contentions have threshold merit. Plaintiff has presented insufficient information to enable the court to determine with any degree of certainty whether Dr. Wassermann satisfies sections 512(c)(2) and (3) of MCARE. Plaintiff has not shown that Dr. Wassermann practices in a "subspecialty which has a substantially similar standard of care for the specific care at issue."*fn6 40 PA. CONS. STAT. ANN. § 1303.512(c)(2). Nor has plaintiff presented any evidence that board-certification in neurology is similar to board-certification in emergency medicine, see 40 PA. CONS. STAT. ANN. § 1303.512(c)(3), or that Dr. Wassermann "possesses sufficient training, experience and knowledge" and satisfies the requirements of the exception in section 512(e) of MCARE. The court is not convinced, however, that exclusion of the challenged evidence is warranted at this juncture.*fn7 To the extent that plaintiff seeks to elicit standard of care testimony from Dr. Wassermann, on direct or in rebuttal to defendants' expert,*fn8 the court will defer the determination until trial of whether Dr. Wassermann satisfies sections 512(c)(2) and (3) of MCARE, or its exceptions.

The court would be remiss if it did not observe that defendants' own expert witness, Daniel F. Hanley, M.D. ("Dr. Hanley"), like Dr. Wassermann, is a neurologist, does not practice in emergency medicine, and is not board-certified in emergency medicine. (See Doc. 22, Ex. A, Curriculum Vitae.) Nevertheless, defendants contemplate Dr. Hanley as an expert witness on the applicable standard of care. (See Doc. 22 at 6 ¶ 3.) Although plaintiff has not challenged Dr. Hanley's competency to testify as to the applicable standard of care, the court will permit plaintiff to offer such a challenge at trial. If plaintiff challenges Dr. Hanley's competency, defendants shall proffer evidence, prior to any testimony by Dr. Hanley regarding the applicable standard of care, that Dr. Hanley satisfies sections 512(c)(2) and (3) of MCARE, or its exceptions.

II. Non-Emergency Medicine Statements, Positions, or Practice Guidelines

Defendants' motion in limine seeks to preclude Dr. Mehlman from offering statements, positions, or practice guidelines from any non-emergency medical care society for the purpose of establishing the standard of care of a board-certified emergency medicine physician. Defendants contend that section 512(c) of MCARE "clearly sets forth that standard of care testimony must be specific to the specialists' training, experience and board-certification." (Doc. 19 at 9 (emphasis added).) This section, however, specifies the qualifications required for an expert to be deemed competent to testify regarding the applicable standard of care. See 40 PA. CONS. STAT. ...


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