J.A02042/16
2016 PA Super 190
MARY JANE FREY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ROBERT POTORSKI, M.D. :
:
: No. 1161 MDA 2015
Appeal from the Judgment Entered June 19, 2015
in the Court of Common Pleas of Luzerne County Civil Division
at No(s): 2008-03655
BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED AUGUST 26, 2016
Appellant, Mary Jane Frey, administratrix of the Estate of Richard John
Frey (“Decedent”), appeals from the judgment entered in the Luzerne
County Court of Common Pleas in this medical malpractice action. Appellant
claims the trial court erred in allowing a hematologist, Henry M. Rinder,
M.D., to testify regarding the standard of care for Appellee, Robert Potorski,
M.D., an interventional cardiologist. We hold that the trial court properly
determined that Dr. Rinder was qualified to testify under the Medical Care
Availability and Reduction of Error Act (“MCARE Act”), 40 P.S. § 1303.512,
and any error in the admission of his testimony was harmless in light of the
substantially similar testimony of another qualified expert regarding the
standard of care. Therefore, we affirm.
*
Former Justice specially assigned to the Superior Court.
J.A02042/16
The trial court summarized the facts as follows:
This case involves a medical professional liability action
arising out of the death of a 51 year old male following an
arterial dissection, angioplasty and stenting procedure
performed on March 28, 2006. [Decedent] underwent a
cardiac catheterization and a subsequent intervention
performed by [Appellee] Dr. Robert Potorski. The doctor
intended to stent a narrowing in the ramus branch.
At the beginning of the intervention, [Decedent] was
administered Plavix and 5000 units of Heparin. Two stents
were placed into the ramus. During the intervention a left
main artery dissection occurred. At the end of the
dissection repair, [Appellee] added ReoPro [an
anticoagulation drug]. Following the procedures,
[Decedent] was returned to the cath lab after experiencing
chest pain and EKG changes. [Appellee] inserted another
stent into the left main to treat the dissection.
When [Decedent] was returned to the cath lab, it was
determined that the left main had closed. An intra aortic
balloon pump was inserted. A determination was made,
due to the prior medical history of [Decedent], by a
cardiothoracic surgeon that [Decedent] was not a surgical
candidate. [Decedent] remained hospitalized at Wilkes-
Barre General Hospital until March 31, 2006 during which
time the intra aortic balloon pump was removed.
[Decedent] was then transferred to Hospital of University
of Pennsylvania (HUP) where he underwent PCTA
[Percutaneous Transluminal Coronary Angioplasty], Intra-
Aortic Balloon Pump (IABP), Left Ventricular Assistant
Device and cardiac transplant. He died on May 31, 2006.
Prior to trial[1] [Appellant] filed a Motion in Limine to
preclude the testimony of Dr. Henry Rinder from offering
opinions on whether [Appellee’s] administration of
anticoagulants prior to the start of the Percutaneous
1
Appellant filed a complaint on April 29, 2008, seeking damages for the care
rendered during the March 28, 2006 cardiac intervention and the delay in
transferring Decedent to HUP.
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Coronary Intervention (PCI) was in accordance with the
standard of care. After argument on December 23, 2014,
the Court denied [Appellant’s] Motion in Limine ruling that
the hematology and cardiology fields of medicine are
substantially similar in the area in which Dr. Rinder would
testify per his report.
Trial Ct. Op., 6/26/15, at 1-2.
A jury trial was held in January 2015. During voir dire, Dr. Rinder
detailed his relevant experience. Dr. Rinder is a Professor of Hematology
and the Director of the Clinical Hematology Laboratory at the Yale School of
Medicine. N.T., 1/21/15, at 8-9. He and Appellee are board certified in
internal medicine. Id. at 14. Dr. Rinder’s particular expertise lies in the
treatment of clotting, coagulation, bleeding, thrombosis, and general blood
disorders. Id. at 3. As part of his practice, he frequently consults with
interventional cardiologists regarding the necessary levels of anticoagulation
to be administered to patients undergoing cardiac procedures, like that
undertaken by Decedent. Id. at 15-16. At trial, Dr. Rinder specifically
opined that Appellee’s administration of anticoagulation drugs was
appropriate and in conformity with the standard of care:2
[Appellee’s counsel]: Now Doctor, the jury has before it
your education your training and background, and your
understanding of the treatment and the medications that
were administered to [Decedent] in advance of the PCI
procedure in this case. Do you have an opinion, sir, that
you hold with a reasonable degree of medical certainty as
to whether or not the anticoagulation drugs that were
2
Appellant objected to Dr. Rinder’s testimony regarding the standard of
care, but the trial court overruled the objection. N.T., 1/21/15, at 33.
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administered to [Decedent] prior to the start of the
intervention to the ramus comported with the standard of
care?
* * *
[Dr. Rinder]: In my experience as a hematologist, in
consultation with multiple types of these cases working
with interventional cardiologists, these drugs are both
appropriate and their dosing is appropriate, and it follows
the standard of care for such an interventional procedure.
[Appellee’s counsel]: Doctor, similarly, do you have an
opinion that you hold with a reasonable degree of medical
certainty as to whether the drugs that were administered
to [Decedent] prior to the start of the interventional
procedure to the ramus, do you have an opinion that you
hold with a reasonable degree of medical certainty whether
those dosages and selections of drugs would produce an
anti-thrombolytic status and were appropriate anti-
thrombosis drugs for [Decedent]?
[Dr. Rinder]: Yes. To a reasonable degree of medical
certainty, again, as a hematologist working with
interventional cardiologists in this area, and having a lot of
experience with them, these dosages of drugs should be
completely effective at blocking thrombin activity and at
inhibiting platelet activity, and that they will be effective at
preventing ischemic complications.
Id. at 32-34.
Further, Dr. Rinder refused to opine on areas he deemed outside his
expertise on cross-examination:
[Appellant’s counsel]: So the question that I had for you,
Doctor, was are you aware with these procedures, with
these interventions, that if there is a space between the
stent and the wall of the artery, that . . . is an area for
clot buildup?
[Dr. Rinder]: I’m not expert enough in understanding the
placement of stents, the anatomy of the coronaries and
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the anatomy of a dissection to be able to comment on
that.
[Appellant’s counsel]: Are you able to comment upon
whether . . . well, I’ll frame it this way. Heparin does not
get rid of existing clot, correct?
[Dr. Rinder]: I would have to disagree with that.
[Appellant’s counsel]: Does a dissection increase the risk
for clotting?
[Dr. Rinder]: Again, the anatomy of a dissection and the
types of dissections. I’m not expert enough to be able to
weigh in on that.
Id. at 86.
Appellant presented the deposition testimony of Andrew P. Selwyn,
M.D., an interventional cardiologist. Dr. Selwyn opined that Appellee had
violated the standard of care by failing to conduct a test to determine
Decedent’s actual activated clotting time (“ACT”) after receiving heparin but
before the start of the PCI procedure. N.T., 1/8/15, at 109-10. Dr. Selwyn
explained that a state of therapeutic anticoagulation is essential before a PCI
procedure because when blood is in contact with foreign material, clot
formation is likely. Id. at 101. Dr. Rinder was asked about the ACT test
and acknowledged that he is not an interventional cardiologist on cross-
examination:
[Appellant’s counsel]: Not only wasn’t there one
measured, you cannot tell us-you can’t look at a person
and say, oh, I’m looking at you, your ACT would be-and
then supply a specific number, correct?
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[Dr. Rinder]: No. All I can say is that the dose of Heparin
that was given, and the fact that there was no clotting on
any of the wires or catheters in the first procedure, would
suggest that he was fully anticoagulated by Heparin.
[Appellant’s counsel]: Doctor, my question was-My
question to you is, see if you can agree with me on this,
you cannot tell me the ACT level for [Decedent] at any
time between the time that Heparin was given and the
time of the dissection, correct?
[Dr. Rinder]: I cannot assign a number.
* * *
[Dr. Rinder]: . . . I think cardiologists-and again, I’m not
a cardiologist, but I understand from them that they get
the ACT for many different reasons and I can’t speculate
as to those.
N.T., 1/21/15, at 71-72.
On day prior to Dr. Rinder’s testimony, Appellee presented the
testimony of Joel K. Kahn, M.D., an interventional cardiologist. Dr. Kahn
also opined that Appellee did not violate the standard of care in his
administration of anticoagulants prior to the PCI procedure. Moreover, Dr.
Kahn emphasized that Appellee was not required to obtain an ACT test under
the standard of care:
[Appellee’s counsel]: Do you have an opinion, Doctor, that
you hold with a reasonable degree of medical certainty, as
to whether or not Dr. Potorski deviated from the standard
of care in failing to secure an ACT test of [Decedent]
before he actually started the intervention to the ramus?
[Dr. Kahn]: I do have an opinion, and it’s that it was not
required by the standard of care to determine an ACT at
the time point you’re talking about.
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[Appellee’s counsel]: Can you explain to the ladies and
gentleman of the jury why?
[Dr. Kahn]: Yes. I mean, one, [Decedent] was properly
prepared in that he came to the cath lab on daily aspirin,
which is necessary. And he also, in a way that exceeded
the standard of care, had already gotten Plavix 600
milligrams before the stent program was embarked upon.
So he actually had two antiplatelet agents orally onboard.
And 5,000 units of Heparin is in fact my standard dosing.
Many of us have practiced in days before there were ACT’s
and know that it is available but it’s not a necessary
portion of successful angioplasty and stenting. And it was
an adequate dose, and [Decedent] adequately pretreated
with other agents that thinned the blood, and one can be
confident that one will have a good outcome and a good
antithrombotic program.
N.T., 1/20/15, at 38-39.
On cross-examination, Dr. Kahn reiterated that in his opinion, Appellee
met the standard of care regarding the administration of anticoagulation
agents, regardless of an ACT test:
[Appellant’s counsel]: Would you agree with me that if
[Appellee] did not do an ACT, that [Appellee] deviated
from reasonable care?
[Dr. Kahn]: I would not agree with that.
* * *
[Appellant’s counsel]: So at Beaumont Hospital, the
Hospital of the University of Pennsylvania, at Brigham and
Women’s, and Dr. Selwyn says it’s all across the country,
but you’re telling us that not to perform that does not
represent a deviation from reasonable care, that’s what
you want this jury to believe?
[Dr. Kahn]: If adequate antiplatelet agents and
antithrombotic agents were administered, which is the
case here.
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Id. at 102-103.
On January 23, 2015, the jury returned a unanimous defense verdict.
On February 2, 2015, Appellant filed a motion for a new trial alleging that
Dr. Rinder, as a hematologist, was not qualified to testify regarding the
standard of care for Appellee, an interventional cardiologist. The trial court
denied Appellant’s motion and, in a June 26, 2015 memorandum opinion,
determined that Dr. Rinder was qualified to testify pursuant to the MCARE
Act, and any error in admitting this evidence was harmless because the
testimony was substantially similar to that of defense expert, Dr. Kahn.
Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement and the
instant timely appeal followed wherein Appellant sets forth the following
issues for review:
1. Whether [Appellee’s] expert, a physician who claimed
expertise as a pathologist and hematologist, was qualified
to testify as to standard of care in favor of an
interventional cardiologist under Section 512 (c), 40 P.S. §
1303.512?
2. Whether the Trial Court committed reversible error in
permitting [Appellee’s] expert, a physician who claimed
expertise as a pathologist and hematologist, to testify
regarding the standard of care of [Appellee], an
interventional cardiologist, under Section 512 (c), 40 P.S.
§ 1303.512?
3. Whether the Trial Court committed reversible error in
permitting [Appellee’s] expert, a physician who claimed
expertise as a pathologist and hematologist, to testify
regarding the standard of care of [Appellee], an
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interventional cardiologist, under Section 512 (e), 40 P.S.
§ 1303.512?
4. Whether Appellant was prejudiced or harmed by the
Trial Court’s decision to permit [Appellee’s] expert, a
physician who claimed expertise as a pathologist and
hematologist, to testify regarding the standard of care of
[Appellee], an interventional cardiologist, under either
Section 512 (c) or (e), 40 P.S. § 1303.512?
Appellants’ Brief at 4-5.
In his first three issues, Appellant argues that Dr. Rinder was not
qualified to testify regarding Appellee’s standard of care under the MCARE
Act. Specifically, Appellant asserts that Appellee failed to establish that Dr.
Rinder was qualified under either Section 512(c) or 512(e) of the MCARE Act
because both sections ultimately require that an expert “[b]e 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.” 40 P.S. §
1303.512(c)(1).
Appellant avers that as a hematologist, Dr. Rinder was not sufficiently
familiar with the standard of care for an interventional cardiologist like
Appellee. Appellant points to the particular testimony offered by Dr. Rinder
regarding whether Appellee appropriately ensured that Decedent was
properly therapeutically anticoagulated at the start of the PCI procedure.
Appellant asserts Dr. Rinder demonstrated that he was unfamiliar with
Appellee’s standard of care by declining to testify regarding the potential for
clotting as the result of specific actions during the PCI procedure and by
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refusing to opine that an ACT test was necessary prior to the PCI procedure.
We cannot agree.
As a prefatory matter, we note:
“[w]hether a witness has been properly qualified to give
expert witness testimony is vested in the discretion of the
trial court. It is well settled in Pennsylvania that the
standard for qualification of an expert witness is a liberal
one.” Wexler v. Hecht, 847 A.2d 95, 98 (Pa. Super.
2004) (citations and quotation marks omitted). “Thus, we
may reverse the trial court’s decision regarding admission
of expert testimony only if we find an abuse of discretion
or error of law. Furthermore, because the issue regarding
an expert’s qualifications under the MCARE Act involves
statutory interpretation, our review is plenary.” Jacobs v.
Chatwani, 922 A.2d 950, 956 (Pa. Super. 2007) (citations
omitted).
Vicari v. Spiegel, 936 A.2d 503, 512-13 (Pa. Super. 2007) (“Vicari I”).
The MCARE Act provision addressing the qualification of expert
witnesses provides, in pertinent part:
§ 1303.512. Expert qualifications
(a) General rule.—No person shall be competent to
offer an expert medical opinion in a medical professional
liability action against a physician unless that person
possesses sufficient education, training, knowledge and
experience to provide credible, competent testimony and
fulfills the additional qualifications set forth in this section
as applicable.
(b) Medical testimony.—An expert testifying on a
medical matter, including the standard of care, risks and
alternatives, causation and the nature and extent of the
injury, must meet the following qualifications:
(1) Possess an unrestricted physician’s license to
practice medicine in any state or the District of
Columbia.
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(2) Be engaged in or retired within the previous five
years from active clinical practice or teaching.
Provided, however, the court may waive the requirements
of this subsection for an expert on a matter other than the
standard of care if the court determines that the expert is
otherwise competent to testify about medical or scientific
issues by virtue of education, training or experience.
(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 . . . (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).
* * *
(e) 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
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.
40 P.S. § 1303.512(a)-(c), (e).
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“With passage of the MCARE Act, the General Assembly created a
more stringent standard for admissibility of medical expert testimony in a
medical malpractice action by the imposition of specific additional
requirements not present in the common law standard.” Vicari v. Spiegel,
989 A.2d 1277, 1280 (Pa. 2010) (“Vicari II”). Our Supreme Court has
summarized these “additional requirements” as follows:
[P]ursuant to Section 512, to testify on a medical matter in
a medical malpractice action against a defendant
physician, an expert witness must be a licensed and active,
or a recently retired, physician. In addition, in order to
render an opinion as to the applicable standard of care, the
expert witness must be substantially familiar with the
standard of care for the specific care in question.
Furthermore, the expert witness must practice in the same
subspecialty as the defendant physician, or in a
subspecialty with a substantially similar standard of care
for the specific care at issue (“same specialty
requirement”). Finally, if the defendant physician is board
certified, the expert witness must be board certified by the
same or a similar board (“same board certification
requirement”). Importantly, the expert witness must meet
all of these statutory requirements in order to be
competent to testify. However, there is an exception to
the same specialty and same board-certification
requirements: if a court finds that an expert witness has
sufficient training, experience, and knowledge to testify as
to the applicable standard of care, as a result of active
involvement in the defendant physician’s subspecialty or in
a related field of medicine, then the court may waive the
same specialty and same board certification requirements.
Id. at 1281 (emphasis omitted). The burden to establish an expert’s
qualifications under the MCARE Act lies with the proponent of the expert
testimony. Weiner v. Fisher, 871 A.2d 1283, 1290 (Pa. Super. 2005).
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Significantly, Pennsylvania courts have consistently held that medical
specialties may overlap and an expert can qualify to testify under the MCARE
Act upon demonstrating a familiarity with the specific standard of care at
issue. See Vicari II, 989 A.2d at 1281-84 (holding oncologist was qualified
to testify regarding standard of care for otolaryngologist and radiation
oncologist where oncologist demonstrated sufficient training and experience
gained through thirty years of practice in a related field); Hyrcza v. West
Penn Allegheny Health Sys., Inc., 978 A.2d 961, 973-74 (Pa. Super.
2009) (holding physician who was psychiatrist and neurologist was qualified
to testify regarding standard of care for physiatrist’s treatment of multiple
sclerosis patient where testifying physician could demonstrate that a
substantial portion of his practice was devoted to such care); Smith v. Paoli
Memorial Hosp., 885 A.2d 1012, 1016-18 (Pa. Super. 2005) (holding
general surgeon, oncologist, and internist were permitted to testify against
gastroenterologist, where each testifying physician could report having
experience treating gastrointestinal bleeding and cancers).
In the instant case, the trial court found that Dr. Rinder demonstrated
sufficient familiarity with Appellee’s standard of care to permit him to testify
under Sections 512(c)(1) and 512(e) of the MCARE Act and we agree. The
crux of Appellant’s argument lies in his contention that as a hematologist
who did not personally perform PCI procedures, Dr. Rinder was not qualified
to testify as both Section 512(c)(1) and 512(e) require a “substantial
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familiarity” with the care involved. However, a review of Dr. Rinder’s
qualifications and his specific testimony reveal that he was eminently
qualified.
Dr. Rinder specifically limited his testimony to the standard of care
necessary to the administration of anticoagulation medication prior to a PCI
procedure. He explained that in the course of his practice, he often
consulted with interventional cardiologists regarding this exact subject.
N.T., 1/21/15, at 15-16. Dr. Rinder’s particular expertise in the area of
clotting, coagulation, bleeding, and thrombosis, as well as his experience
consulting on the proper dosages to be administered prior to PCI
procedures, allowed him to opine that the 5000 units of Heparin given to
Decedent prior to his PCI procedure comported with the standard of care.
See Vicari II, 989 A.2d at 1281; Hyrcza, 978 A.2d at 973-74; Smith, 885
A.2d at 1018.
Dr. Rinder’s refusal to opine on other areas outside of the correct
dosages of anticoagulation medication did not render him unqualified to
testify regarding his area of expertise. Therefore, we conclude that the trial
court did not err by concluding that Dr. Rinder was sufficiently familiar with
Appellee’s standard of care regarding the correct dosages of anticoagulation
drugs prior to a PCI procedure and thereby properly admitted Dr. Rinder’s
expert testimony. Vicari II, 989 A.2d at 1281. Accordingly, Appellant’s first
three issues lack merit.
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In his final issue, Appellant assets that the trial court also erred by
finding that a new trial was not warranted because Dr. Rinder’s testimony
was not sufficiently prejudicial to Appellant’s case. Specifically, Appellant
avers that Dr. Rinder’s testimony regarding the standard of care and the
necessity of an ACT test was particularly harmful because this testimony
contradicted that of Appellee’s own expert, Dr. Kahn. However, a review of
the record reveals that Appellant’s contention is not accurate.
When reviewing a trial court’s ruling regarding a new trial, we note:
[I]f the basis of the request for a new trial is the trial
court's rulings on evidence, then such rulings must be
shown to have been not only erroneous but also harmful .
. . . Evidentiary rulings which did not affect the verdict will
not provide a basis for disturbing the jury's judgment.
Detterline v. D’Ambrosio’s Dodge, Inc., 763 A.2d 935, 938 (Pa. Super.
2000) (citation omitted); see Hyrcza, 978 A.2d at 974 (holding any error in
the admission of expert testimony regarding the standard of care was
harmless where another qualified expert testified to the same standard of
care at trial).
In the instant case, the trial court concluded that any error in the
admission of Dr. Rinder’s testimony was harmless because Dr. Kahn, an
interventional cardiologist, also opined that Appellee did not breach the
standard of care in his administration of anticoagulant medication prior to
Decedent’s PCI procedure. Our review of the record reveals no reason to
disturb the trial court’s finding of harmless error. Dr. Kahn specifically noted
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that Appellee comported with the standard of care when administering 5,000
units of Heparin prior to Decedent’s PCI procedure. N.T., 1/20/15, at 38.
Dr. Kahn even went a step further, opining that Appellee did not breach the
standard of care by failing to conduct an ACT test. Id. Accordingly, because
Dr. Kahn testified to the same standard of care as Dr. Rinder, we conclude
that any error in admitting Dr. Rinder’s testimony was indeed harmless.
See Hyrcza, 978 A.2d at 974. Therefore, having discerned no abuse of
discretion or error of law, we affirm the judgment below.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2016
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