With the Super Bowl just moments away, it seems fitting that the Pennsylvania Supreme Court “punted” rather than decide an issue of importance to all attorneys who handle medical malpractice cases in the state. On January 28, 2009, just a few days before the big game, the Court issued its long-awaited decision in Gbur v. Golio, No. 23 WAP 2008. The issue before the Court was one of great importance: interpretation of the MCARE Act’s same-subspecialty requirement as it relates to the admission of expert testimony to establish the standard of care in a medical malpractice action. The result – a divided Court (3 to 3 with Justice McCafferty not participating), affirmed the trial court and Superior Court. The reasoning – there’s the rub.
Justices Saylor, Eakin and Todd affirmed, holding that the issue before the Court had not been properly preserved. On the other hand, Justice Greenspan issued a concurring Opinion, joined by Chief Justice Castille and Justice Baer, concluding that the issue had been preserved and arguing that the expert physician was eligible for a waiver of the MCARE Act’s requirements under Section 512(c)(2) of the statute. Although it is not unreasonable to assume that at least one member of the Saylor-Eakin-Todd Justices would likely have voted to affirm – thus permitting the waiver here, such a conclusion remains conjecture.
If nothing else, the opinions are interesting, well-written, and will certainly generate more litigation and more appeals. They should also educate practitioners that they must be very careful when preserving issues, something lawyers who do not handle appeals tend to forget. And when they do, appellate lawyers (including moi) are left to create interesting arguments designed to put the preserved round peg into a tight-fitting square hole.