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.
____________________________________________


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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