In an opinion authored by Senior Judge William H. Platt, the Superior Court of Pennsylvania recently addressed whether expert witnesses, specifically medical experts, can testify to matters that are not directly within their specialty.
In James v. Albert Einstein Med. Ctr., et al.[1], Florence James, individually and as the Executrix of her brother’s estate, brought suit against five physicians and the institutional medical providers for which they practice. Ms. James alleged that from December of 2004 until March of 2011, said providers failed to diagnose the cause of her brother’s various recurring abdominal problems.
In 2011 after a CT scan, liver biopsy, colonoscopy and other testing, Lafayette James was determined to have a neuroendocrine carcinoid tumor and subsequently died in February of 2014. Ms. James asserted that the Appellees failed to order the proper follow-up diagnostic tests and failed to make appropriate referrals to specialists. Ms. James reasoned that as a result of these failures, delay in diagnosis occurred and her brother’s tumor grew until it metastasized and became incurable.
The Appellees argued that at all times they complied with the standard of care. Further, they asserted that Lafayette James was a noncompliant patient who failed to follow through on various referrals to specialists, failed to return for scheduled follow-up visits, and failed to present himself for additional testing procedures. The Superior Court noted that the record confirmed that the decedent only presented every year or two, when his abdominal symptoms were acute.
At trial, Ms. James objected to the trial court’s acceptance of Dr. Steven Peikin as an expert defense witness in oncology, because oncology was outside of his expertise. After a ten-day trial, the jury returned a verdict for the defendants. Ms. James timely appealed, her main argument being that the trial court had erred in qualifying Dr. Peikin, a gastroenterologist, as an expert in oncology.
The Pennsylvania Superior Court ruled in favor of Appellees and held that it was proper for the trial court to permit Dr. Peikin to offer opinions regarding oncology, despite his specialty being gastroenterology. The Superior Court reached this decision based on the analysis set forth below.
The court started its analysis by explaining that the standard for evaluating qualifications of an expert witness under Pennsylvania law is a liberal one: “The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.”[2]
In order to address experts in the practice of medicine, the Superior Court went on to explain, “In the area of medicine, specialties sometimes overlap and a practitioner may be knowledgeable in more than one field. It is for the jury to determine the weight to be given to the expert, in light of the qualifications shown by the expert witness.”[3]
Specifically addressing the allowance of cross-specialty expert witness testimony, the court relied on McDaniel v. Merck, Sharp & Dohme, which held, “Experts in one area of medicine have been ruled qualified to address other areas of specialization where the specialties overlap in practice, or where the specialist has experience in another related medical field.”[4]
The Superior Court further relied on McDaniel and explained, “Although a witness must demonstrate some special knowledge or skill, there is no requirement that a witness acquire that knowledge as a result of formal schooling; expertise acquired by experience is expertise nonetheless.”[5] The court next turned to the Medical Care Availability and Reduction of Error (MCARE) Act, to supplement the McDaniel reasoning, specifically turning to §1303.512(e) which states, “A court may waive the same specialty and board certification requirements for an expert testifying as to the 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 in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five year time period.”[6]
Applying the above analysis to Dr. Peikin, the Superior Court reasoned that although Dr. Peikin’s primary specialty was gastroenterology, he was qualified to give testimony related to oncology based on his experience and knowledge. The experience the court found relevant in its determination that Dr. Peikin was qualified to give such testimony was: he is the head of Gastroenterology and Liver diseases at Copper University Hospital, he diagnoses cancer as a gastroenterologist, he is on the “tumor board” at Cooper University Hospital (a board responsible for monitoring cancer patients and deciding courses of treatment), and he completed a two year fellowship in endocrine tumors at the National Institute of Health.
[1] James v. Albert Einstein Med. Ctr. et al., Pa. Super. Ct. (unpublished opinion) (September 12, 2017).
[2] B.K. ex rel. S.K. v. Chambersburg Hosp., 834 A.2d 1178, 1182 (Pa. Super. 2003).
[4] McDaniel v. Merck, Sharp & Dohme, 533 A.2d 436 (1987).
[5] Id. at 440.