• Medical Expert's Magic Words Not So Magical
  • December 21, 2009 | Author: Paul A. Lefebvre
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - King Of Prussia Office
  • The Pennsylvania Superior Court has previously held that an expert witness in a medical malpractice case does not need to use the "magic words" that their opinions are given "to a reasonable degree of medical certainty" in order to meet the requisite degree of certainty for medical expert opinion. Conversely, the Pennsylvania Superior Court has recently ruled in the medical malpractice case of Griffin v. University of Pittsburgh Medical Center-Braddock Hospital, 2008 Pa. Super. 104, 2008 Pa. Super. LEXIS 1000, that just because an expert does use the "magic words," it does not guarantee that the expert's opinion meets the requisite degree of medical certainty.

    In Griffin, the defendant-hospital, the University of Pittsburgh Medical Center - Braddock Hospital, appealed from the judgment entered in favor of the plaintiff-patient, Rita Griffin, in the Court of Common Pleas of Allegheny County. The hospital argued on appeal that the plaintiff's expert witness failed to render his opinion regarding the cause of the plaintiff's shoulder injury to the requisite degree of medical certainty.

    By way of factual background, Ms. Griffin underwent a laparoscopic ileocolectomy (a surgical procedure to remove a diseased section of the last segment of the small intestine and the first segment of the large intestine) at the University of Pittsburgh Medical Center -Braddock Hospital. Post-operatively, she exhibited some confusion and agitation in the early morning hours. A short time later, she began to complain of right shoulder pain. She was subsequently diagnosed with a right shoulder dislocation and fracture. Ms. Griffin thereafter commenced a medical malpractice action against the hospital, alleging that her shoulder injury could not have occurred in the absence of negligence on the part of the hospital's employees or agents. During the course of litigation, Ms. Griffin testified at deposition that she had no recollection of the events that led to her shoulder dislocation and fracture.

    At trial, the plaintiff's expert witness stated at the beginning of his testimony under direct examination that all of his opinions were held within a "reasonable degree of medical certainty" unless stated otherwise. Plaintiff's expert subsequently opined that the plaintiff's shoulder injury was caused either by a grand mal seizure (a non-negligent factor) or forcible restraint (indicating medical negligence). Grand mal seizures involve "violent body thrashing and motions," and the shoulder could have been injured in that manner, according to plaintiff's expert. He also opined that the other potential cause of the shoulder injury was from applying force to the shoulder in an attempt to restrain the plaintiff, who was being combative or resisting restraint, and applying such force would amount to medical negligence. Plaintiff's expert went on to opine under direct examination that of these two possibilities, the most likely cause of the plaintiff's shoulder injury was from forcible restraint. Under cross examination, the plaintiff's expert stated that there was a 51 percent probability that the cause of the plaintiff's shoulder injury was forcible restraint compared to a 49 percent probability that the cause was a seizure. The hospital presented a defense expert witness who opined, to a reasonable degree of medical certainty, that the plaintiff's shoulder injury was caused by a classic nocturnal grand mal seizure (not attributed to medical negligence) and not by forcible restraint.

    The Superior Court in Griffin noted that, generally, in medical malpractice cases, the plaintiff must demonstrate the elements of negligence: "A duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of harm." Griffin at P7 citing Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d 1061, 1070-71. Expert medical testimony is required in a medical malpractice case "where the circumstances surrounding the malpractice claim are beyond the knowledge of the average layperson." Id. citing Vogelsberger v. Magee-Women's Hosp. of UPMC Health Sys., 206 Pa. Super. 146, 903 A.2d 540, 563 n.11 (Pa. Super. 2006). The plaintiff is "required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards and that such deviation was the proximate cause of the harm suffered." Id. citing Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888, 892 (Pa. 1990).

    In determining whether the expert's opinion is rendered to the requisite degree of certainty, the court should examine the expert's testimony in its entirety. Id. citing Carrozza v. Greenbaum, 2004 Pa. Super. 464, 866 A.2d 369, 379 (Pa. Super. 2004). An expert's opinion will not be deemed deficient merely because he or she failed to expressly use the specific words "reasonable degree of medical certainty." Id. citing Vicari v. Spiegel, 2007 Pa. Super. 316, 936 A.2d 503, 510-11 (Pa. Super. 2007). Experts are not required to use "magic words," but rather, the court must look to the substance of the expert's testimony to determine whether his opinions were based on a reasonable degree of medical certainty rather than upon mere speculation.

    In applying the foregoing principles, the Superior Court in Griffin held that despite the use of the "magic words" by plaintiff's expert, the substance and totality of his entire testimony did not support the opinion, to the legally requisite degree of medical certainty, that forcible restraint caused the plaintiff's shoulder injury. The Superior Court noted that it appeared that he rendered an opinion, to a "reasonable degree of medical certainty," that there was a 51 percent probability that negligent forcible restraint caused the injury over a nearly equal 49 percent probability that a non-negligent factor (a seizure) caused the injury. The Superior Court held that this opinion does not equate to an opinion stating to a reasonable degree of medical certainty that negligent forcible restraint caused the plaintiff's shoulder injury. The Superior Court further held that the plaintiff could not sufficiently eliminate a non-negligent cause of her injury, even when viewing the plaintiff's expert's testimony in the most favorable light. Accordingly, an inference of negligence should not have been permitted to be drawn against the hospital on the record in this case. The Superior Court reversed the judgment entered in favor of the plaintiff and remanded it to the trial court for entry of a judgment notwithstanding the verdict in favor of the hospital.