J.A02042/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.

MEMORANDUM BY FITZGERALD, J.:                              FILED JULY 15, 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 affirm.

        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



*
    Former Justice specially assigned to the Superior Court.
J.A02042/16


        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
        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.


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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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
         administered to [Decedent] prior to the start of the
         intervention to the ramus comported with the standard of
         care?

                                  *     *     *



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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        [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
        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?


                                     -4-
J.A02042/16



         [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?

         [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,


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J.A02042/16


        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.

        [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.


                                   -6-
J.A02042/16


        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.


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



                                     -7-
J.A02042/16


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 Medical

Care Availability and Reduction of Error Act (“MCARE Act”), 40 P.S. §

1303.512, 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
         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


                                    -8-
J.A02042/16


         [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

refusing to opine that an ACT test was necessary prior to the PCI procedure.

We cannot agree.

      As a prefatory matter, we note:




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         “[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.

            (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


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          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).

     “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,


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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).

     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


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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

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



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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.

      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



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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

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



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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: 7/15/2016




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