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PA Appellate Panel Rules In Med Mal Case Involving Unqualified Medical Expert

A Pennsylvania woman, Beverly DeLeon, brought a medical malpractice case against Dr. Elizabeth Wise, an OB/GYN, and Lake Erie Obstetrics & Gynecology, citing a failure to deliver adequate prenatal medical care. DeLeon sought prenatal care from Dr. Wise in 2011, when she was 14 weeks pregnant. She was prescribed Flagyl, an antibiotic for treatment of a vaginal infection. The following day, DeLeon took a 500 milligram dose of the product and began to feel pain in the abdomen and lower back area. She contacted Dr. Wise’s office and was told to discontinue usage of the Flagyl. The pain persisted for several days and DeLeon abruptly had a miscarriage, which led her to file a medical malpractice claim.

In the pretrial phase, the plaintiff revealed that her expert witness would be Evan Legenzoff, PharmD, which was opposed by a defense motion stating that Dr. Legenzoff was not qualified to testify regarding whether the defendant’s care met reasonably expected medical standards.

The antibiotic Flagyl (Metronidazole) is commonly used for treatment of various infections. It acts by stopping the progression of several varieties of bacteria and parasites, and is not effective in treating infections which are viral, such as colds and flu. The trial court granted the motion for the defense that the expert lacked qualifications necessary to review and report on the standards of care provided by an OB/GYN because he was solely a certified Doctor of Pharmacy. The plaintiff challenged the ruling stating that he had the education, training and experience necessary, although he was not a physician. Pennsylvania’s Medical Care Availability & Reduction of Error Act (MCARE) states that to evaluate the work of a physician in an action of professional liability, the expert must be actively aware of the standards of care for the profession and should be a licensed physician.

The panel of three Superior Court judges affirmed the ruling of the lower court in favor of the defendant. This court cited the case of Wexler v. Hecht (2007) which explained that no such “waiver” existed for the MCARE requirement that expert testimony be conducted by a physician. The court clarified that pharmacological training and experience was insufficient to truly discuss how a particular pharmaceutical product would (or would not) be appropriate treatment for types of patient infections.

Under Pennsylvania law, medical malpractice is a type of negligence that to be proven must meet certain key elements including:

  • The medical professional owed a duty
  • The duty was breached
  • Harm and damages to the patient were caused by the breach

A motion for summary judgment in these actions is appropriate when the evidence, such as depositions, interrogatories and the answers to interrogatories, etc. show that no genuine issue of the material facts entitle the moving party to a judgment. (Fed. R. Civ. P. 56c) When determining a ruling, the court reviews the facts within the evidence in a manner that is most favorable to the non-moving party.

About the Author

Charles GilmanCharles Gilman
Charles Gilman

As managing partner and co-founder of Gilman & Bedigian, it is my mission to help our clients recover and get their lives back on track. I strongly believe that every person who is injured by a wrongful act deserves compensation, and I will do my utmost to bring recompense to those who need and deserve it.


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