Gbur v. Golio

Justice GREENSPAN,

concurring.

I write separately because, in my view,1 Appellant properly preserved his objection to Dr. Sanford’s qualifications under Sections 512(c)(2) (“the same subspecialty requirement”) & (3) *85(“the same approved board requirement”) of the MCARE Act. Consequently, I would reach the merits of this appeal. As to the merits, I would affirm on the basis that, at a minimum, Dr. Sanford was eligible for a waiver of those requirements under Section 512(e).

In the Opinion Announcing the Judgment of the Court (“OAJC”), Justice Saylor, joined by two Justices, concludes that Appellant failed to preserve his objections to Dr. Sanford’s qualifications under the same subspecialty and same approved board requirements. He reaches this conclusion because, in his view, Appellant’s written and oral motions in limine objecting to Dr. Sanford’s testimony were not sufficiently specific. I respectfully disagree.

The relevant facts cited in the OAJC are as follows: In his pretrial motion in limine, Appellant begins his argument challenging Dr. Sanford’s testimony by providing the entire text of Section 512, which lists a total of six requirements, including the same subspecialty and same approved board requirements, and two exceptions that govern one or both of these two requirements. Appellant then argues: “Dr. Sanford is a radiation oncologist! He has no specialized education, training, or experience in the field of urology.” Gbur v. Golio, No. GD03-005415, Motion in Limine (September 9, 2005) (emphasis in original). At trial, Appellant renewed his motion orally, stating:

Dr. Sanford is a radiation oncologist. Dr. Golio is a urologist. Dr. Sanford has never spent one day practicing as a 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.

A litigant’s challenge to the admission of evidence is preserved for appeal if that litigant files a motion in limine or *86makes a timely objection, either of which must state the specific grounds of the objection if the specific ground is not apparent from the context. Pa.R.Evid. 103(a). See, e.g., Track v. Fellin, 817 A.2d 1102, 1107 n. 3 (Pa.Super.2003) (en banc). Appellant cited to Section 512 in both his written and oral motions in limine, then emphasized that Dr. Sanford (a radiation oncologist) and Appellant (an urologist) were not the same type of specialist. Section 512(c)(2) requires that a proffered expert practice in the same subspecialty or in a subspecialty with a substantially similar standard of care as the care at issue. Section 512(c)(3) requires that a proffered expert possess the same board certification or a certification by a similar approved board as the defendant physician. The trial court here was not “required to parse independently through the multiple provisions” of Section 512.2 Majority Op. at 454 n. 11. That Appellant challenged Dr. Sanford’s testimony under Section 512’s requirements that an expert be the same or a similar type of specialist was certainly, at minimum, apparent from the context of both his written motion and oral objection in accordance with Rule 103(a).

Furthermore, Justice Saylor’s focus on the “categorical” nature of Appellant’s objection is misplaced. Section 512 places the burden on Appellee, the party proffering Dr. Sanford, to demonstrate that Dr. Sanford either meets Section 512’s requirements or qualifies for a statutory waiver of certain requirements. To preserve an objection to Dr. Sanford’s testimony, Appellant’s written and oral motions needed only be sufficient to invoke Appellee’s burden to establish Dr. Sanford’s competency,3 which they were.

*87Although I believe Appellant’s challenges to Dr. Sanford’s testimony were sufficiently specific under the facts considered in the OAJC alone, additional facts in the record also support the conclusion that Appellant properly preserved the issue. In his pretrial motion in limine, Appellant argued that Appellee’s expert “should be precluded from offering testimony regarding standards of care.” Gbur v. Golio, No. GD03-005415, Motion in Limine (September 9, 2005) (emphasis added). At trial, Appellant followed up on this motion, arguing: “The first motion in limine is to preclude Dr. Sanford from offering any standard of care opinions against Dr. Golio.” N.T., September 16, 2005, at 4-5 (emphasis added). In my view, Appellant’s motions in limine were sufficient to preserve challenges under Section 512(c) of the MCARE Act, which is titled — and directly addresses testimony on a defendant physician’s — “STANDARD OF CARE.”4

Moreover, I believe that the record indicates that both Appellee and the trial court were fully aware of the nature of Appellant’s challenge to Dr. Sanford’s testimony. Appellant’s oral objection at trial, which renewed his pretrial motion in limine, spurred a lengthy discussion among counsel for both parties and the trial court, during which Appellee’s counsel addressed the trial judge as follows:

The issue before you is[:] is Dr. Sanford qualified to testify? The specific statutes in MCARE, Statute 1303.512, C, where he has to be substantially familiar with the applicable standard of care if he’s not in the same specialty; that he practices in the same subspecialty or in a subspecialty which has a substantially similar standard of care for the specific care at issue.... And then the third part is if [Dr. Golio’s] approved by a board, [Dr. Sanford] got [sic] to be certified *88by the same or similar approved Board in regard to the specific care at issue.

N.T., September 16, 2005, at 18. Counsel’s remarks further illustrate that Appellant’s objection was sufficiently specific to, and did, put both the trial court and the Appellee on notice that he challenged Dr. Sanford’s qualifications under the same subspecialty and same approved board requirements.5

Justice Saylor blames Appellant for the trial court’s failure to address substantively the same approved board requirement in its Opinion and Order. In his Motion for Post-Trial Relief, however, Appellant specifically invokes that requirement, arguing that “under Section 1803.512(c)(3) of the [MCARE] Act, when an expert testifies with respect to the standard of care for a procedure performed by a board-certified physician, the testifying expert must be board certified by the same or a similar approved board.” Defendant’s Motion for Post-Trial Relief at 6, ¶ 52. Moreover, had the trial court not been fully aware of a challenge under Section 512(c)(3) before or during trial (as Justice Saylor suggests), given Appellant’s reference to that provision in his post-trial motion, it almost certainly would have noted Appellant’s previous failure to specify his objection. Therefore, in contrast to Justice Saylor, I fail to see how the trial court’s failure to address Appellant’s same approved board challenge in its subsequent opinion is attributable to any error by Appellant.

Most respectfully, I fear that — whether Justice Saylor intends such a result or not — by appearing to elevate form this far above substance, he may be inviting both civil litigants and criminal defendants to bring a broad array of malpractice actions and ineffective assistance claims even in cases where, as here, counsel and the trial court were fully aware of the specific objections being raised.

Certainly, a litigant’s citation of irrelevant statutory provisions may risk diverting the trial court’s attention from the *89issues he or she wishes to raise. Here, however, that risk did not materialize from Appellant’s minimal surplusage. Appellant not only cited the governing statute in his motions, but also styled arguments — and supported those arguments with facts — that led directly and only to the same subspecialty and same approved board requirements. Significantly, these oral and written motions did in fact put Appellee and the trial court on notice of Appellant’s specific challenges to Dr. Sanford’s testimony. Under these circumstances, Appellant properly preserved this issue for appeal.

I now turn to the merits of this appeal. In the trial court, Appellant argued that the same subspecialty and same approved board requirements of the MCARE Act precluded Dr. Sanford, a radiation oncologist, from testifying to the standard of care applicable to Appellant, a urologist. The Superior Court described the qualifications of Dr. Sanford:

Dr. Shelby Sanford is an honors graduate from the University of Alabama School of Medicine.... He is licensed to practice medicine in Alabama, and he has been Board Certified in radiation oncology since 1986. Since entering private practice in 1986, he has specialized in ... radiation oncology.... Radiation oncology consists of evaluating patients who have cancer and administering different types of radiation treatment to such cancer patients. Dr. Sanford has treated between seventeen thousand and twenty thousand new cancer patients in the last twenty to twenty-one years. In the administration of his treatment, he reviews CT scans, MRIs, PET scans, thyroid CT scans and ordinary x-rays. Dr. Sanford’s residency included training in Brachytherapy, a procedure using radioactive seed implantation to treat patients with prostate cancer.... Between ten percent and twenty percent of his patients have prostate cancer. The treatment of prostate cancer involves the reading of films, interpreting films, and the staging and treatment of prostate cancer patients. Dr. Sanford is a member of numerous medical societies dealing with the medical specialty of radiation oncology, and he has previously been qualified as a medical expert to testify in this field. *90Although Dr. Sanford is not a formally trained urologist, he frequently treats patients with an elevated PSA and follows their progress. Dr. Sanford also consults with patients referred to him by urologists for second opinions. He supervises the radiation treatment of forty to sixty patients daily, and ten to twenty percent of those cases involve prostate cancer patients who are under active treatment by Dr. Sanford. He also regularly works with dentists and oral surgeons in treating patients with cancer of the mandible.

Gburv. Golio, 932 A.2d 203, 207 (Pa.Super.2007).

Section 512(c) provides:

(c) STANDARD OF CARE. — In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:
(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).

The same subspecialty and same approved board requirements quoted above are both subject to Section 512(e), which provides:

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 *91involvement in 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(e) (emphasis added).

A plain reading of terms contained in Section 512’s standard of care provisions reveals a simple statutory scheme. A proffered expert’s failure to satisfy either the same subspecialty or same approved board requirements creates a presumption that the expert is not competent to testify. However, it is within the sound discretion of the trial court whether or not to waive those requirements when an expert, testifying to a physician’s standard of care, possesses sufficient training, experience, and knowledge consistent with the other terms of Section 512(e). In this regard, the legislature attempted to strike a balance between raising standards for medical expert competency and preserving our appellate courts’ “historical deference to trial courts’ discretion in deciding whether to admit evidence at trial.” Herbert v. Parkview Hosp., 854 A.2d 1285, 1294 (Pa.Super.2004).

Justice Saylor, who does not reach the merits, suggests that such a reading of the statute is “in derogation of the legislative design” of the MCARE Act. Slip Op. at 28. However, this Court “must not disregard the statutory language under the pretext of pursuing its spirit.” Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95, 100 (2007) (citing 1 Pa.C.S. § 1921(b)). Moreover, “the best evidence of legislative intent is the words used by the General Assembly.” In re Nomination Petition of Paulmier, 594 Pa. 433, 937 A.2d 364, 372 (2007). This Court must, whenever possible, give effect to all provisions of a statute, 1 Pa.C.S. § 1921(a), and unless a phrase has a technical, peculiar, or otherwise defined meaning, that phrase must be construed according to its common and approved usage. 1 Pa.C.S. § 1903(a).

The' General Assembly, in constructing Section 512(e), granted trial courts the discretion to waive the same subspecialty and same approved board requirement under certain circumstances. Those requirements, in which the legislature *92strictly mandates that a proffered expert’s subspecialty and board certification be either the “same,” “similar,” or “substantially similar,” can be waived if the trial court determines the expert has “sufficient training, experience, and knowledge” from “active involvement” in “the applicable subspecialty” or a “related field of medicine.” Section 512(e), which uses nontechnical language that is less stringent than the same subspecialty and same approved board requirements, must be given effect distinct from those requirements. Therefore, in my view, the General Assembly indeed raised the standards for expert witnesses testifying to a physician’s standard of care when it created a presumption that an expert cannot testify unless he or she both practices in the same subspecialty, or in a subspecialty with a substantially similar standard of care, and is also certified by the same or similar approved board as a defendant physician. Additionally, this Court should not ignore that the legislature also expressly granted discretion to trial courts to consider broader qualifications than those required in Section 512(c)(2) & (3).

Consequently, because Dr. Sanford’s testimony demonstrates that he was eminently qualified to testify to the standard of care applicable to Appellant as a result of his active involvement in the diagnosis and treatment of prostate cancer, I would hold that he was therefore eligible for a waiver of the same subspecialty and same approved board requirements under Section 512(e).6 As between ten and twenty percent of Dr. Sanford’s radiation oncology patients have *93urological cancer, it is axiomatic that Dr. Sanford’s expert testimony in this case came from his active involvement in this aspect of urology, i.e., the applicable subspecialty. Alternatively, to the extent that the record demonstrates that both radiation oncologists and urologists diagnose and treat prostate cancer, these two fields of medicine are certainly “related” in the common and approved sense of the word, and therefore Dr. Sanford also comes within that aspect of the statutory provision. Consequently, there is no need to reach the issue of whether Dr. Sanford would be competent under the same subspecialty and same approved board requirements.

For the reasons above, I depart from the reasoning upon which the Opinion Announcing the Judgment of the Court is premised, and would affirm on other grounds.

Chief Justice CASTILLE and Justice BAER join this opinion.

. Like the Opinion Announcing the Judgment of the Court, this Concurring Opinion has the support of three of six participating Justices.

. The OAJC focuses on the fact that Appellant provided a "broad quotation of the statute [Section 512] as a whole.” Majority Op. at 454 n. 11. It is important to note, however, that only two of the quoted provisions are not relevant to Appellant’s pre-trial and trial objection to Dr. Sanford’s testimony regarding Appellant's standard of care on the basis that Dr. Sanford was not a urologist. In my view, Appellant’s surplusage was too minimal to distract Appellee and the trial, court from the challenges he raised.

. On the other hand, where the objecting party bears the burden of persuading the trial court that challenged testimony is inadmissible, the degree of specificity of a litigant’s objection — which may include the *87quality of his advocacy — is much more important. See, e.g., Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173, 1177 (1981) (holding that the issue of whether testimony improperly referenced unrelated criminal activity was waived where defendant objected only to the relevance of such testimony).

. Although the OAJC centers on Appellant’s preservation of his objection prior to and during trial, I also note that Appellant’s Motion for Post-Trial Relief remained consistent with his earlier challenges to Dr. Sanford’s testimony as to the standard of care applicable to Appellant.

. Appellee admitted as much in the Superior Court. See Superior Court Brief for Appellee at 28 ("[AppellantJ's pre-trial Motion in Limine challenged Dr. Sanford’s ability to testify solely on the basis of his alleged failure to satisfy the standards of MCARE....”).

. I share Justice Saylor's view that trial court rulings under Section 512 should be made on a developed record and that the trial court should make specific findings regarding the particular requirements in dispute prior to admitting the expert’s testimony. In this case, the issue of whether the record of voir dire was sufficient to permit Dr. Sanford’s testimony at the time of his admission need not be reached, however, because Dr. Sanford’s testimony more than revealed his fitness as an expert. Therefore, the trial court’s possible failure to make supported findings on Dr. Sanford’s qualifications prior to accepting him as an expert would merely be harmless error. See McAdoo Borough v. PLRB, 506 Pa. 422, 485 A.2d 761, 764 n. 5 (1984) (holding that this Court can affirm on any grounds supported by the record); E.J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 381 A.2d 441, 443 n. 4 (1977) (same).