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Lori A. anderson, As v. Gary L. Mcafoos

December 18, 2012


Appeal from the Order of the Superior Court entered March 19, 2010 at No. 356 WDA 2009, affirming the Order of the Court of Common Pleas of Warren County entered January 23, 2009 at No. A.D. 80 of 2002.

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


ARGUED: November 30, 2011


The main issue accepted for review is whether, under requirements imposed by the General Assembly, a pathologist was competent to testify as an expert witness regarding the standard of care in a medical malpractice action asserted against a boardcertified general surgeon. We also consider whether the defendant-surgeon's objection to testimony from the pathologist should have been deemed waived, since it was first asserted at trial, rather than by way of an earlier motion.

In the fall of 2001, Mildred L. Anderson manifested adverse health symptoms, and she sought treatment from Appellee, general surgeon Gary L. McAfoos, M.D.*fn1 Mrs. Anderson had several known medical conditions, including a blood disorder which caused excessive clotting. Over a period of about two months, Dr. McAfoos conducted medical tests, including endoscopic procedures in the esophageal and intestinal areas, and he rendered diagnoses of hiatal hernia and intestinal inflammation.

On September 24, 2001, Mrs. Anderson came to the emergency room at Warren General Hospital complaining of shortness of breath and abdominal pain. Blood tests were undertaken, and the laboratory reports were suggestive of cancer. Mrs. Anderson underwent exploratory surgery, performed by Dr. McAfoos, who found a tumor at the junction of her small and large intestines, removed it along with segments of the intestines and lymph nodes, and resected the remaining intestines. Post-surgery laboratory reports indicated that Mrs. Anderson did suffer from cancer, which had advanced beyond the tumor.

For the following two weeks, Mrs. Anderson recuperated in the hospital, where she was visited by an oncologist planning cancer treatment. On the last day of her hospital stay, Mrs. Anderson's progress was assessed by Dr. McAfoos's practice associate, Thomas E. Serena, M.D., also a general surgeon, who was covering for Dr. McAfoos during his absence. Medical notes indicated that Mrs. Anderson's temperature continued to fluctuate into low-grade fever stages, and blood tests had revealed the formation of immature white blood cells. Mrs. Anderson had otherwise shown improvement in her post-surgical recovery, and she wished to go home. Dr. Serena discharged her that day, October 10, 2001, while prescribing follow-up bloodwork.

Upon her arrival at home, Mrs. Anderson experienced severe abdominal pain, and her husband returned her to the hospital immediately. Tests indicated a lifethreatening disorder, and Dr. Serena undertook emergency surgery to address it. He found an intestinal perforation at or near the site of the resection, which had allowed bacteria to enter the abdominal cavity, from where it had permeated into Mrs. Anderson's bloodstream. Dr. Serena removed more segments from the intestines and performed a colostomy, but Mrs. Anderson later died from the sepsis, or her body's traumatic response to the blood infection.

In February 2002, Appellants, the administratrix of Mrs. Anderson's estate and her husband, filed the present medical malpractice action against Dr. McAfoos and his employer, Warren Surgeons, Inc. (collectively, "Appellees"). *fn2 The complaint (and amendments) alleged, among other things, that Dr. McAfoos and his agents breached the applicable standard of care by causing the intestinal leak, by failing to properly diagnose and treat it, and by subsequently discharging Mrs. Anderson although she manifested signs of an infection.

About three months later, the Medical Care Availability and Reduction of Error Act came into effect.*fn3 This legislation imposed new standards for the admissibility of expert testimony in medical malpractice cases -- requirements that were significantly stricter than the common law. See, e.g., Vicari v. Spiegel, 605 Pa. 381, 386, 989 A.2d 1277, 1280 (2010). Of particular relevance here, Section 512 of the MCARE Act requires, among other things, that an expert testifying as to a physician's 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, 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(c).

Thereafter, there was some uncertainty, particularly in the common pleas courts, regarding this statute's applicability to cases, such as the present one, commenced prior to the Act's effective date. See, e.g., Britt v. Peff, No. 3206 Dec. Term 1999, 2003 WL 22345720, at *12 (C.P. Phila., Oct. 10, 2003) (assessing objections to proposed experts' competency under both common law and the MCARE Act). Beginning with its 2004 decision in Wexler v. Hecht, 847 A.2d 95 (Pa. Super. 2004), however, the Superior Court determined and maintained that the Legislature intended the MCARE Act's competency standards to apply to actions commenced both before and after the time of its enactment. See id. at 101; accord Bethea v. Phila. AFL-CIO Hosp. Ass'n, 871 A.2d 223, 226 (Pa. Super. 2005); Warren v. Folk, 886 A.2d 305, 309-10 (Pa. Super. 2005); George v. Ellis, 911 A.2d 121, 126 (Pa. Super. 2006). Ultimately, in June of 2007, this determination was upheld by a majority of this Court, albeit in a deeply divided opinion. See Wexler v. Hecht, 593 Pa. 118, 131, 928 A.2d 973, 981 (2007) (clarifying, as a matter of statutory interpretation, that "Section 512 applies at trials of medical malpractice actions occurring after its effective date . assuming the affordance of adequate time for preparation and adjustment.").

In 2005, Appellants submitted the curriculum vitae and report of their proposed expert witness, William L. Manion, M.D. The former evidenced that Dr. Manion's training, practice and board certifications were all within the field of pathology, specifically the subspecialties of anatomic, clinical and forensic pathology. Among other opinions in his report, Dr. Manion asserted that Appellees contravened the ordinary standards of care by permitting Mrs. Anderson to be discharged from the hospital when certain blood tests, low grade fevers and other factors indicated that she was suffering from a serious infection. In particular, Dr. Manion indicated that, on the date of her discharge, Mrs. Anderson's blood testing showed a "dramatic increase" in the presence of immature white blood cells, which "almost always signifies a bacterial infection." Expert Report of Dr. Manion at 2, RR. at 67a.

In 2007, the trial court entered a case management order, which specified, in pertinent part:

2. All expert reports shall be exchanged before December 27, 2007.

3. All pretrial motions, including but not limited to, motions for summary judgment and motions in Limine, shall be filed on or before January 26, 2008. Parties desiring to submit brief or memoranda of law with their motions shall file them by this deadline. Responses to motions shall be due on or before February 5, 2008 with brief or memoranda of law.

July 31, 2007 Civil Case Management Order, at ¶¶ 2-3; accord September 13, 2007 Amended Civil Case Management Order at ¶¶ 2-3. For compliance, Appellants relied on the existing expert report of Dr. Manion. Neither Appellants nor Appellees filed a pre-trial motion to address the issue of the pathologist's competency, under Section 512 of the MCARE Act, to render standard-of-care testimony in an action against a general surgeon.

Trial ultimately commenced in September 2008. Appellants opened their evidentiary presentation by proffering Dr. Serena as a witness, as on cross- examination. Among other questioning, he was asked to recount the events of October 10, including Mrs. Anderson's discharge from the hospital, her later return, and the ensuing emergency surgery. In terms of the discharge, it was Dr. Serena's testimony that Mrs. Anderson had substantially recuperated, she showed no signs of any leaking from her colon, he did not regard her low-grade fevers or blood tests as prohibitive of a discharge, and the patient wished to go home. See N.T., September 23, 2008, at 89, 161-65. As to the emergency surgery, Dr. Serena said that he found that the intestinal perforation was not along the line of the resection made by Dr. McAfoos, but, rather, was in a nearby area of non-thriving tissue. ...

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