In the matter of Roulette Price v. Alan Catanzariti, D.P.M., No. 1886 WDA 2014, the Superior Court of Pennsylvania ruled on March 30, that podiatrists are not "physicians" as contemplated by the MCARE Act and, thus, plaintiffs asserting medical malpractice against podiatrists are not required to meet the heightened standard for the admission of expert testimony set forth in Section 512 of the MCARE Act.
The plaintiff, Roulette Price, brought a medical malpractice action in the Court of Common Pleas of Alleghany County alleging that Alan Catanzariti, D.P.M., a board-certified podiatric surgeon, negligently performed podiatric surgery, thereby causing injury to Price's foot. In support of her claim, Price produced the expert report of Mark Foster, M.D. Although he was board-certified as an orthopedic surgeon, Dr. Foster was never board-certified in podiatric surgery. Moreover, while he maintained an active clinical practice, he had not performed any surgeries in over eight years and he never performed the podiatric surgery at issue. Finding that Dr. Foster did not practice in the same subspecialty as the defendant and did not have sufficient training, experience, or knowledge of podiatric surgery, the trial court ruled that Dr. Foster was not qualified pursuant to the MCARE Act to render an expert opinion on the facts and issues of the case. As a result, the trial court granted the defendant's motion to exclude the testimony of Dr. Foster, and granted the defendant's motion for compulsory non-suit, dismissing the case with prejudice.
In reversing the trial court's decision, the Superior Court found that the MCARE Act was inapplicable to the facts of the case because the defendant was a podiatrist, and not a physician as that term is statutorily defined. While the Court conceded that this was a professional liability claim which necessitated a certificate of merit pursuant to Pa.R.C.P. 1042.3, it held that the plaintiff was not required to meet the heightened standard for admission of expert testimony under Section 512 of the MCARE Act. Instead, the common law standard applied, which requires nothing more than showing that the expert has a reasonable pretention to specialized knowledge on the subject under investigation. Under this less burdensome standard, the Superior Court felt that Dr. Foster, as a board-certified orthopedic surgeon, was qualified to testify.
As Section 512 of the MCARE did not apply, the fact that Dr. Foster had not performed surgery in eight years and had never performed the surgery at issue went to the weight, and not the admissibility, of his testimony
Comment: The holding in Roulette Price v. Alan Catanzariti, D.P.M. will likely impact both pending and future podiatry/podiatric surgery claims in Pennsylvania. Although the plaintiffs are still required to produce certificates of merit in these cases, this holding allows expert testimony to be presented to a jury under the diminished common law standard of "reasonable pretention to specialized knowledge on the subject under investigation." Although the ramifications of this holding remain to be seen, it is likely that an increased number podiatry/podiatric surgery cases will survive summary judgment or motions for non-suit due to this diminished expert standard.