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Gbur v. Golio

January 28, 2009


Appeal from the Order of the Superior Court entered August 24, 2007 at No. 1390 WDA 2006, affirming the Judgment of the Court of Common Pleas of Allegheny County entered June 27, 2006 at No. GD03-5415. 932 A.2d 203 (Pa. Super. 2007).

The opinion of the court was delivered by: Mr. Justice Saylor


ARGUED: September 8, 2008


We allowed appeal to address the MCARE Act's same-subspecialty requirement pertaining to the admission of expert testimony to establish the standard of care in a medical malpractice action. Although the Court is unanimous as to the result, it is equally divided concerning the appropriate reasoning. This opinion, supported by three of six participating Justices, turns on issue preservation.

Appellant is a physician specializing in the field of urology. He is certified by the American Board of Urology. In 2001 through 2002, Appellant treated Appellee's decedent, Joseph Gbur, for prostate cancer. In March 2003, Mr. and Mrs. Gbur commenced a medical malpractice action against Appellant. Their theory of the case centered upon Appellant's receipt, in March 2001, of the results of a radiological bone scan, in which the radiologist reported as follows:

There are multiple foci of abnormal activity involving the right and left sides of the pelvis, the lower thoracic spine, right ribs, right mandible. The pattern is consistent with osseous metastatic disease. There are some areas of increased activity at the knees and in the cervical spine which may be degenerative in nature.



According to the Gburs, Appellant: discounted the scan and report without consulting the radiologist; did not advise Mr. Gbur of the results; and proceeded to embark upon an unnecessary course of treatment, including implantation of radioactive seeds in Mr. Gbur's prostate (brachytherapy), which would have been appropriate only for nonmetastasized prostate cancer. In the meanwhile, the Gburs contended, Mr. Gbur reasonably did not understand that the severe pain he suffered in his jaw was due to the metastasis, since he was unaware of the results of the bone scan. Thus, the plaintiffs alleged, Mr. Gbur underwent an unnecessary course of dental procedures (including multiple root canals) and suffered needless pain, when his symptoms would have been appropriately addressed (and ultimately were addressed) by irradiation, had Mr. Gbur apprehended earlier that he suffered from metastasis.

In discovery, the Gburs produced the expert report of Shelby P. Sanford, M.D., a board-certified radiation oncologist, who opined that Appellant breached the governing medical standard of care by failing to evaluate the bone scan findings more thoroughly, discuss the findings with Mr. Gbur, and report the results to other treating physicians.

Although Appellant could not have prevented Mr. Gbur's ultimate death (which occurred during the course of the legal proceedings), according to the report, Appellant's asserted failures resulted in many unnecessary, aggressive surgical interventions and delayed appropriate palliative treatment.

Prior to trial, Appellant filed a motion to dismiss and a motion in limine challenging, among other things, Dr. Sanford's competence to express an opinion concerning the standard of care applicable in the practice of urology. Appellant generally invoked Section 512 of the MCARE Act, which, among other things, requires that an expert testifying as to a physician's standard of care must:

(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, except as provided in subsection (d) or (e).

(3) In the event the defendant physician is certified by an appropriate board, be board certified by the same or a similar approved board, except as provided in subsection (e).

40 P.S. §1303.512(c). Appellant opened his lead argument with the assertion that, as a radiation oncologist, Dr. Sanford was not qualified to testify against a urologist, thus implicating Section 512(c)(2). The argument proceeded as follows:

Plaintiff secured the opinions of Shelby P. Sanford, M.D. To support her claims of negligence against Dr. Golio. Dr. Sanford is a radiation oncologist! He has no specialized education, training or experience in the field of urology. In retrospect, Dr. Sanford is critical of Dr. Golio for failing to perform additional testing, by way of x-ray or CT to rule out metastasis. He is critical of Dr. Golio for not supplying the bone scan report to Dr. Onufrey[, a radiation oncologist to whom Appellant referred Mr. Gbur in connection with the brachytherapy procedure].

Dr. Sanford issued an affidavit to show that he is very familiar with bone scans and brachytherapy. He affirms that he routinely orders and reviews bone scans. The audacity of all of this is that he is not critical of radiation oncologist, Dr. Onufrey, who was the primary physician concerning the brachytherapy. By his own admission, Dr. Onufrey never looked at the bone scan/MRE reports. He never asked for them. He never looked at the actual films. He never bothered to explore why he was missing Pages one (1) through (6) of Dr. Golio's fax.*fn1 He simply was lazy and he elected to allow other specialists, i.e. [a medical oncologist] and Golio to do his work for him. The coup de grate [sic] is when he cannot produce pages one (1) through six (6) of the fax, but rather, replaces the six pages with a self-serving note. Why did Dr. Onufrey fail to chart in May 2002 what he charted in March 2003, when he discussed these matters with his patient? Why is Dr. Sanford silent about all of this?

Dr. Golio is not the consultant. He is the referring physician. Dr. Onufrey is the expert. When did it become standard of care for the referring physician to tell the consultant how to do his job? Dr. Golio sends to the consultant, precisely what the consultant requests. How is Dr. Golio supposed to know what is important to the consultant, if the consultant did not ask for it. It will prove to be a grave injustice to Dr. Golio, if Dr. Sanford is permitted to criticize his care of the decedent in this case.

Gbur v. Golio, No. GD03-005415, Motion in Limine (September 9, 2005).

Appellee's responses included references to Dr. Sanford's affidavit, indicating, among other things, that:

He trained in brachytherapy procedures involving radioactive seed implantations into the prostate at The University of Alabama, Birmingham, as well as at The University of Washington, Seattle in 1995. He has personally performed approximately fifty brachytherapy procedures, each time working with the urologist, as is standard practice. The standard of care for brachytherapy is a national standard.

As a part of the treatment protocol for prostate cancer patients, he regularly orders and reviews bone scan tests and, either directly or in conversation with the patients' other treating physicians, determine[s] how the results of the bone scan testing will impact the patient's treatment protocol. The standard for physicians reviewing bone scans and the impact that the results of the same have upon treatment of prostate cancer is also a national standard.

Appellee also invoked waiver provisions associated with the same-specialty requirement set forth in Section 512(d) and (e) of the MCARE Act, as follows:

(d) Care outside specialty.--A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:

(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and

(2) the defendant physician provided care for that condition and such care was not within the physician's specialty or competence.

(e) Otherwise adequate training, experience and knowledge.--A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement 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(d), (e).

The motions were denied on a pre-trial basis.

At trial, Appellant's counsel orally renewed his motion in limine, again arguing that:

Dr. Sanford is a radiation oncologist. Dr. Golio is a urologist. Dr. Sanford has never spent one day practicing as urologist. While he might have some knowledge of certain areas of treatment like brachytherapy, which is involved in this case, he works on it and analyzes the case from the prospective [sic] of a radiation oncologist and not a urologist.

So we feel that he is unable to offer opinions in that regard. He does not satisfy the elements of MCARE. That's essentially the gist of the first issue, Your Honor.

N.T., September 16, 2005, at 4-5. Appellant also renewed his effort to shift any responsibility to Dr. Onufrey for inappropriately failing to address the bone scan prior to participating in the brachytherapy procedure. See id. at 16-17. Appellee's responses included development of the position that the MCARE Act's same-subspecialty requirement is not as rigid as Appellant represented, but that it requires only practice in a subspecialty which has a substantially similar standard of care for the care at issue. See id. at 7. Further, Appellee again invoked Section 512's various waiver provisions. As to Dr. Onufrey, Appellant noted that his conduct was not at issue in the case, and that Appellant was free to seek contribution if appropriate. See id. at 17. Consistent with the prior rulings, the trial court denied the oral motion in limine.

On voir dire examination, Dr. Sanford explained that radiation oncology is the discipline of evaluating patients who may or do have cancer, deciding how they need to be treated, and administering radiation treatment. In this connection, he explained that radiation oncologists regularly read radiographic films and reports. Further, he indicated that he has special education and training in brachytherapy. Dr. Sanford also indicated that ten to twenty percent of his patients have prostate cancer. In response to a question concerning whether the standards for the staging and treatment of prostate cancer are national in character, Dr. Sanford replied, "I would say that is a national standard. I know of no regional standards." N.T., September 19, 2005, at 122. On cross-examination concerning his qualifications, Dr. Sanford conceded that he had no formal education, training, or expertise in the discipline of urology, other than by way of a two-month residency rotation. See id. at 124. The trial court accepted Dr. Sanford as an expert, and Appellant indicated that he was preserving his prior objections.

Upon direct examination, Dr. Sanford proceeded to reiterate and expound upon the conclusions previously set forth in his report. In particular, Dr. Sanford described the bone scan film for Mr. Gbur as "flagrantly positive" for metastasis and indicated that the radiologist interpreting the scan had used the strongest terms in conveying the positive result. See N.T., September 19, 2005, at 189, 223. Dr. Sanford noted that Appellant nevertheless had noted in Mr. Gbur's medical records that the "bone scan [was] negative," which Dr. Sanford found absolutely to contradict the report. According to Dr. Sanford, "no urologist, radiation oncologist or anybody on just reviewing the family record would supersede the opinion of a board certified radiologist on that point." Id. at 209. On the medical records, Dr. Sanford found "no acknowledgement [on Appellant's part] of the metastasized disease, and no treatment plan to further diagnose, delineate or treat it." Id. at 214. Consistent with his report, Dr. Sanford opined that it was a breach of the applicable medical standard of care to conduct the brachytherapy procedure without alerting Mr. Gbur concerning his widely metastasized disease. See N.T., September 20, 2005, at 318. Appellee also presented the videotape deposition of Mr. Gbur, who by the time of trial had died, in which Mr. Gbur testified that Appellant did not discuss the bone scan or report with him and indicated that, had he known of the metastasized cancer, he would have consulted an oncologist as opposed to a series of dentists for his jaw pain.

Appellant countered with testimony from a board certified urologist and a radiation oncologist, both of whom indicated that Appellant met the applicable standard of care in his treatment of Mr. Gbur. See N.T., September 22, 2205, at 691; N.T., September 21, 2005, at 609, 613-614.*fn2 A particular focus of the experts was upon Appellant's receipt, several days after receiving the results of the bone scan, of an MRI scan and report which did not disclose any local spread of cancer in Mr. Gbur's pelvic region. The defense experts characterized the circumstances presented to Appellant as a "diagnostic dilemma" and opined that he reasonably erred on the side of recommending curative, as opposed to palliative, treatment. See, e.g., N.T., September 22, 2005, at 685-686 (indicting that there was a "ten to maybe a fifty percent chance in this patient's case that these are not metastases" and "[y]ou would hate to miss [the] opportunity to cure him."). They testified that they believed that Appellant's treatment plan was made in consultation with a radiologist, was reasonable under the circumstances, and was within the appropriate standard of medical care, particularly as metastasis to the mandible is a relatively rare occurrence. See, e.g., id. at 672. Further, the defense contended that Mr. Gbur's conduct contributed to his own suffering, since in November 2001 he had taken it upon himself to leave a hospital emergency room against medical advice. See N.T., September 21, 2005, at 532-534.

The jury rendered a verdict awarding monetary damages in favor of Appellee,*fn3 and Appellant filed motion for post-trial relief challenging, inter alia, the admission of Dr. Sanford's testimony concerning the applicable, medical standard of care. The trial court denied relief, explaining in general terms, that the MCARE Act recognizes that overlap can occur between and among medical specialties. The trial court referenced Section 512(c)(1) of the MCARE Act, 40 P.S. §1303.512(c)(1), which requires that a plaintiff's expert be substantially familiar with the applicable standard of care at issue as of the time of the alleged breach (but which does not address the separate, same-subspecialty requirement raised by Appellant). The court observed that, in his practice, Dr. Sanford examines patients like Mr. Gbur on a regular basis and is knowledgeable as to their diagnosis, treatment, and care. Additionally, the trial court indicated that, under the MCARE Act, it had discretion in assessing qualifications for expert medical opinions and noted that it had found that Dr. Sanford met those requirements as a result of his treatment of cancer patients.

On appeal, the Superior Court affirmed in a published opinion. See Gbur v. Golio, 932 A.2d 203 (Pa. Super. 2007). The court developed Dr. Sanford's qualifications in detail, concluding that the radiation oncologist was eminently qualified to testify concerning the standard of care applying to a urologist in the factual circumstances presented. With regard to the MCARE Act's requirements, the Superior Court initially indicated that Appellant relied primarily upon Section 512(d), the care-outside-subspecialty waiver provision attaching to the same-subspecialty requirement. Upon its review of Dr. Sanford's qualifications, the court highlighted that he "had significant ...

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