J-A29004-15
2016 PA Super 76
ROULETTE PRICE, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALAN CATANZARITI, D.P.M.,
Appellee No. 1886 WDA 2014
Appeal from the Judgment Entered October 21, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 110001164
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
CONCURRING DISSENTING OPINION BY BOWES, J.:FILED MARCH 30, 2016
I agree with the majority that § 1303.512 (“§ 512”) of the Medical
Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. 1303.101 et
seq., “Expert Qualifications,” did not apply herein. That section addresses
the competency of expert medical opinion against a physician, and the
defendant is a podiatrist rather than a physician. Hence, the trial court
erred when it excluded Dr. Mark Foster’s expert testimony based on § 512.
Although Appellant neither raised that specific argument below nor asserted
it on appeal, the majority sua sponte reverses on this basis. I cannot
support reversal on that ground for the reasons that follow.
Appellant argues herein, as she argued below, that Mark Foster, PhD,
M.D., FACS, was qualified to render expert opinion under Section 512 of the
MCARE Act because his orthopedic practice was sufficiently related to permit
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him to testify against defendant podiatrist. Dr. Foster performed the same
surgical procedure as the defendant podiatrist herein approximately fifty
times and was familiar with the standard of care. He maintains an active
clinical practice in orthopedics, a related field of medicine that includes
treatment of the foot and ankle. However, Appellant did not advance any
argument below that Section 512 of the MCARE Act was inapplicable or that
the common law rules regarding the qualification of experts governed.1 Nor
has Appellant briefed or developed any argument that, under the common
law, Dr. Foster was qualified to render expert testimony. Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal. Pa.R.A.P. 302. In this case, the argument also was not advanced
on appeal.
The majority rejects waiver and asserts that our plenary scope of
review permits us to sua sponte raise and review purely legal questions.
See Majority Opinion, at 10 n.6 (“the issue of whether Section 512 applies
to bar Dr. Foster’s testimony is purely one of law, and our scope of review is
plenary.”). The majority refuses to be “constrained by issue preservation
requirements where the statute itself is wholly irrelevant and inapplicable to
the case at bar.” Id. I respectfully disagree.
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1
Appellee pointed out that since Appellant did not argue the inapplicability
of MCARE in the trial court, it has waived any argument that the common
law rather than MCARE governed. See Appellee’s brief at 27, n.12.
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Our Supreme Court has admonished this Court on several occasions
for reversing a decision on a ground that has not been presented to it. In
Weigand v. Weigand, 337 A.2d 256 (Pa. 1975), our High Court reversed
this Court’s determination that several sections of the Divorce Code were
unconstitutional because the parties had not questioned their
constitutionality. The Court reasoned:
The Superior Court by sua sponte deciding [an] issue
exceeded its proper appellate function of deciding controversies
presented to it. The court thereby unnecessarily disturbed the
processes of orderly judicial decisionmaking. Sua sponte
consideration of issues deprives counsel of the opportunity to
brief and argue the issues and the court of the benefit of
counsel’s advocacy . . . Furthermore, sua sponte determinations
raise many of the considerations that led this Court to require
without exception that issues presented on appeal be properly
preserved for appellate review by timely objection in the trial
court. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa.
255, 322 A.2d 114 (1974).
The Weigand Court remanded the matter to this Court for consideration of
the issues presented by the parties. Accord Steiner v. Markel, 968 A.2d
1253, 1256-1257 (Pa. 2009) (reversing this Court for its reversal of the trial
court on a basis that was not raised or preserved); Knarr v. Erie Ins.
Exchange, 723 A.2d 664 (Pa. 1999) (clear error for Superior Court to sua
sponte address applicability of the Uniform Arbitration Act of 1980 even if
the trial court’s disposition under the Uniform Arbitration Act of 1927 was
fundamentally wrong).
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Thus, although I agree with the majority that § 512 was not applicable
in this case against a non-physician defendant, and that the common law
rule regarding the competency of experts governed, I believe Appellant
waived that claim. It is not the role of an appellate court to act as an
advocate for the parties. Thus, the issue was not before us and should not
have been addressed. Certainly, reversal is improper on that basis.
Herein, the parties and the trial court operated under the assumption,
albeit mistaken, that § 512 of the MCARE statute controlled whether Dr.
Foster was qualified to render expert standard of care testimony against the
podiatrist defendant. Accepting that premise, and addressing the issue as
presented, I agree with Appellant that Dr. Foster was qualified under §
512(b), (c), and (e) to render the proffered expert testimony. The expert
possessed an unrestricted physician’s license and was actively engaged in
clinical practice. See § 512(b)(1) and (2). He was board-certified in a
similar specialty with a similar standard of care for the surgical procedure at
issue and he demonstrated familiarity with that standard of care. See §
512(c)(1) and (2). Although Dr. Foster did not practice in the same
specialty, he possessed “sufficient training, experience and knowledge”
regarding the specific surgical procedure at issue, to testify as an expert
herein. See § 512(e); see also Renna v. Schadt, 64 A.3d 658 (Pa.Super.
2013) (permitting board-certified pathologist and oncologist to testify in case
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against surgeon regarding standard of care for performance of a fine needle
aspiration in lieu of other available biopsy methods).
For that reason, which was relegated to a footnote by the majority, I
concur in the reversal and remand for a new trial.
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