Failure-to-Detect Claims Against Dermopathologists

Medical Experts

One of the first issues is to decide what expert is competent to criticize the original dermopatholigst for failing to detect the cancer cells on the pathology slide. Both Pennsylvania and New Jersey have similar requirements. Pennsylvania's stem from the MCARE Act (Medical Care Availability and Reduction of Error Act, Pennsylvania Act 13 of 2002). Pursuant to the MCARE Act, an expert testifying to a physician's adherence to the standard of care must:

• Be substantially familiar with the applicable standard of care for the specific disease at issue as of the time of the alleged breach of the standard of care;
• Practice in the same subspecialty as the defendant physician or in a subspecialty that has a substantially similar standard of care for the specific disease at issue; and
• In the event the defendant physician is certified by an approved board, be board-certified by the same or similar approved board.

The MCARE Act does provide that the court may waive the “same subspecialty” requirement for an expert testifying on the standard of care if the court determines that the expert is trained in the diagnosis or treatment of the condition, the defendant provided care for that condition, and such care was within the physician's specialty or competence.