Wade Clark Mulcahy LLP

<p style="text-align: justify;">Recently, in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/05/Rolon-v.-Davies-et.-al..pdf">Rolon v. Davies et. al.</a>,</em> (2020 Pa. Super 106), the Pennsylvania Superior Court assessed the requisite degree of certainty required of a medical expert’s testimony.</p>
<p style="text-align: justify;">By way of background, the appellant filed a medical malpractice action, alleging, in part, that the appellees’ negligence led to his wife’s death. The suit alleged that appellees failed to diagnose an arterial blockage in the decedent’s pelvic area, which led to a pulmonary embolism that proved fatal. A jury trial later commenced, and appellant presented a medical expert on the operating surgeon’s alleged negligence.</p>
<p style="text-align: justify;">The medical expert, who practices in Boston, MA, testified during trial. The expert used the language of both the Massachusetts legal standard of “more likely than not” and the Pennsylvania legal standard opinion of “to a reasonable degree of medical certainty”. The expert testified that based upon decedent’s test results, symptoms, and prior surgery, the surgeon breached his duty of care by failing to perform further testing to determine if there were any blood clots in the decedent's pelvic area. During his testimony, the expert used the Pennsylvania legal standard when offering his opinion as to the surgeon’s alleged breach of the applicable standard of care. Whereas, he used the Massachusetts standard, with its more conditional language, when describing the potential effectiveness of alternative treatments. When asked, the expert testified that both phrases were interchangeable to him.</p>
<p style="text-align: justify;">At the close of appellant’s case at trial, the surgeon and surgical center moved for a nonsuit, arguing that the expert failed to offer his full opinion to a reasonable degree of medical certainty, citing the expert’s use of the Massachusetts standard and conditional language. The trial court agreed and granted their motion. The jury later returned defense verdicts for the remaining appellees.</p>
<p style="text-align: justify;">The Superior Court disagreed with the trial court, noting that under Pennsylvania law, the question is not whether the expert’s opinion actually used the words “to a reasonable degree of medical certainty,” or used conditional language, but whether the expert’s opinion, viewed in its entirety, was made to a reasonable degree of medical certainty. The Superior Court found that the expert's testimony met that standard, noting that he expressed his opinion in certain terms and provided a thorough explanation for the basis his opinion. Further, the Superior Court held that the medical expert’s testimony could not be read in isolation, as argued by appellees, as the isolated statements ignored other evidence relied upon by the medical expert during his testimony. As a result, the Superior Court determined that the medical expert provided his testimony to a reasonable degree of medical certainty awarding the appellant a new trial against the surgeon and the surgical center.</p>
<p style="text-align: justify;">This is a warning to anyone that engages an out-of-state expert - that it is the attorney's job to fully prepare expert witnesses for the evidentiary standards in the jurisdiction where the case is pending.  Failing to lay a proper foundation for the expert's testimony can be a costly error at any stage of the litigation.</p>
Thanks to Benjamin G. Ferrell for his contribution to this post.  Please contact <a href="mailto:vterrasi@wcmlaw.com">Vincent F. Terrasi</a> with any questions or comments.