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Definition Of 'Appropriate Licensed Professional' For Expert Purposes Narrowed In Federal Medical Malpractice Case (PA)

May 5, 2023

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In the recent case of <a href="https://www.wcmlaw.com/wp-content/uploads/2023/05/Joseph-Geiger-v.-United-States-of-America.pdf"><em>Joseph Geiger v. United States of America,</em></a> the United States District Court for the Middle District of Pennsylvania, held that only a physician can qualify as “an ‘appropriate licensed professional’ for the purposes of providing expert testimony regarding the applicable standard of care or a statement in support of a certificate of merit against a physician. <em>Joseph Geiger v. United States of America</em>, No. 3:22-CV-01079, 2023 WL 3136405, at *3 (M.D. Pa. Apr. 27, 2023).

In<em> Geiger</em>, Geiger filed a civil action against the Federal government, under the Federal Torts claim Act (“FTCA”), alleging that he received negligent medical care, in Pennsylvania, from the United States Department of Veteran Affairs. Under the FTCA, federal courts, sit in federal question jurisdiction but apply “the substantive tort laws of the state in which the alleged tort arose,” and Pennsylvania substantive law requires a certificate of merit to be filed when pursuing a medical malpractice action. The certificate of merit “must attest either that an <strong><em>appropriate licensed professional</em></strong> supplied a written statement that there exists a reasonable probability that the care provided fell outside acceptable professional standards, or that expert testimony of an appropriate licensed professional is unnecessary.”

Defendant-United States of America, motioned to strike Geiger’s certificate of merit because it relied upon a written statement by his optometrist, and optometrists are not physicians, i.e., not MDs. The court agreed with the Defendant. The court reasoned that while optometrists are licensed professionals, they are not “appropriate” licensed professionals for purposes of satisfying Pennsylvania’s certificate of merit requirement. The court relied upon a variety of precedents and various Sections of Pennsylvania’s MCare Act, which, in a variety of contexts repeatedly differentiated between MD-holding physicians, and other non-physician medical professionals, such as optometrists and podiatrists.

<em>Geiger </em>is a victory for civil defendants, in that it posits a narrow definition of “appropriate licensed professional” which plaintiffs need satisfy to state a claim for medical malpractice. By limiting “appropriate licensed professional” to physicians in this context, the Court has shrunk the pool of licensed professionals that Plaintiffs can rely upon to help them satisfy their certificate of merit requirements, thus making it harder, as a practical matter, for plaintiffs to state claims for medical malpractice.

Thanks to Stephen Kerstein for his assistance with this article.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.

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