In Griffin v. University of Pitt., 950 A.2d 996 (Pa. Super. 2008), the Superior Court analyzed expert medical testimony and, in deciding that a doctor's testimony was insufficient to prove causation, provided further insight into what language will and will not comply with the "reasonable degree of certainty" rule.
The Facts
Rita Griffin was admitted to the hospital and underwent abdominal surgery. After successful surgery, she exhibited some confusion and agitation. Later, she complained of shoulder pain and was eventually diagnosed with a shoulder fracture/dislocation. The shoulder injury required four surgeries and left her with permanent decreased range of motion. Ms. Griffin filed a medical malpractice case against the hospital in which she alleged that her shoulder injury was caused by negligent forcible restraint.
Plaintiff's Expert Medical Testimony
Plaintiff's expert, Dr. Kevin Speer, began his testimony with the generic promise that all of his opinions would be given "to a reasonable degree of medical certainty" unless he stated otherwise. He explained that the shoulder injured could not have been caused by thrashing about or falling out of the bed. Instead, he believed that there were two potential causes of the injury: either a grand mal seizure or an altercation with hospital staff involving forcible restraint which broke the shoulder. Dr. Speer stated that such restraint would have been below the standard of care.
On direct, Dr. Speer testified that "the most likely" cause was forcible restraint, rather than seizure. On cross, Dr. Speer clarified as follows, "I think that from a reasonable degree of medical certainty, that is choosing one or the other, a fifty-one to forty-nine percent consideration, I think that the least implausible consideration would be that she was restrained and her shoulder was injured in her attempts to be restrained because she was resisting that."
The Superior Court's Analysis
Ultimately, the Superior Court decided that Dr. Speer's testimony was not sufficient on the issue of causation.
Although Dr. Speer used the words "reasonable degree of medical certainty," it was apparent from the totality of his testimony that he was opining that restraint was more likely the cause compared to seizure on a 51% / 49% basis. The Court equated this testimony to stating that it "could very properly account for the injury" or that it "more likely than not" caused the injury, which are both legally insufficient.
The Court recounted that the "magic words" of "to a reasonable degree of medical certainty" are not necessarily required. Instead, the question is whether the testimony in its entirety is sufficiently certain or mere speculation. Words like "possibly," "probably" or even "very highly probable" have all been held insufficient. In addition, previous holdings make it clear that using preponderance language of "more likely than not" is a recipe for disaster. The Pennsylvania Supreme Court has held that "probably" is not good enough because "the intent of our law is that if the plaintiff's medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record which a jury can make a decision with sufficient certainty so as to make a legal judgment." McMahon v. Young, 276 A.2d 534, 535 (Pa. 1971).
The Lesson
The lesson to be learned is that expert witness opinions must be thoroughly explored and challenged before trial. The expert should be able to comfortably use the "magic language" of "to a reasonable degree of certainty." The expert must also know that the standard is not a preponderance, "more likely than not" determination. Instead, the standard is whether the expert would be confident enough to make a professional decision. You must be confident that the expert will not revert to uncertain words like "possibly," "probably" or even "very highly probable" or else you should not use that expert.
Author Resource:-
Tim Rayne is the author of numerous publications on Personal Injury Law and is a graduate of the Temple University Beasley School of Law's Master's in Trial Advocacy Program. Tim can be reached at http://www.macelree.com/traynelaw.
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