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Medical Malpractice Attorneys
Philadelphia, Pennsylvania
MEDICAL EXPERTS - WHEN & HOW THEY HELP YOU WIN
By, Norman Perlberger, Esquire1
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III. Standard of Medical Opinion Evidence
In the famous case of Sinn v. Burd, 404 A.2d 672 (Pa. 1979), rejecting bystander psychic harm unless within the foreseeable zone of danger, the Supreme Court declared this Commonwealth’s standard that a medical expert had to offer opinion testimony stated to a reasonable medical certainty:
It has long been assumed that medical science is unable to establish that the alleged psychic injuries in fact resulted from seeing a gruesome accident. See, e. g., Huston v. Freemansburg Boro., 212 Pa. 548, 550, 61 A. 1022 (1905), describing a cause of action for mental disturbance as being intangible, untrustworthy, illusory, and speculative. Advancements in medical and psychiatric science throughout this century have discredited these hoary beliefs. Niederman, 436 Pa. at 405-08, 261 A.2d at 86-87. One commentor concisely answered this question in 63 Geo.L.J. 1179, 1184-85 (1975):
The growing competence of medical science in the field of psychic injuries has diminished the problems of proof in mental distress cases. The development of psychiatric tests and the refinement of diagnostic techniques has led some authorities to conclude that science can establish with reasonable medical certainty the existence and severity of psychic harm. In cases involving negligently inflicted mental distress, however, changes in the law have not kept pace with the increased sophistication of psychiatry. Special rules created to deal with problems of proof that were a legitimate concern in mental distress cases 50 years ago have restricted modern courts in their handling of these claims. (footnotes omitted.)
"Situations in which the failure to qualify the opinion have resulted in exclusion are typically those in which the expert testimony is speculative, using such language as 'possibility.'" In re Paoli R.R. Yard Litigation ("Paoli II"), 35 F.3d 717, 741 (3d Cir. 1994). The Federal Rules of Evidence, however, do not require a particular phrase regarding the degree of certainty with which experts must form their opinions, but they certainly allow questions concerning the degree to which the opinion is held.
Accordingly, while the particular phrase used should not be dispositive, it may indicate the level of confidence the expert has in the expressed opinion. Perhaps nothing is absolutely certain in the field of medicine, but the intent of the law is that if a physician cannot form an opinion with sufficient certainty so as to make a medical judgment, neither can a jury use that information to reach a decision. Daubert at 209.
In Paoli II, supra, the Third Circuit reversed a summary judgment on certain claims because the plaintiff's expert had not testified to a degree of medical certainty. The degree of certainty required in Paoli II was because, under Pennsylvania law, the burden of proof required that degree of certainty.
It is a little known fact that a defense expert witness in a medical malpractice case need not necessarily utilize the same standard for his or her opinion testimony as that of the plaintiff. The Superior Court recently in the case of Jacobs v. Chatwany, 2007 PA Super 102; 2007 Pa. Super. LEXIS 726, stated:
In any event, Pennsylvania law does not require a defense expert in a medical malpractice case to state his or her opinion to the same degree of medical certainty applied to the plaintiff, who bears the burden of proof at trial. Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103, 110 (Pa. Super. 1987). In Neal, the defendant surgeon offered rebuttal testimony, opining that a "possible" cause of the condition the plaintiff complained of was not negligence in performance of the surgery but, rather, the accident that precipitated the surgery. Id. at 109-110. We concluded that the trial court did not abuse its discretion in admitting this testimony because the burden of proving causation, with "reasonable medical certainty," rested with the plaintiff. Id. at 109. We stated: Absent an affirmative defense or a counterclaim, the defendant's case is usually nothing more than an attempt to rebut or discredit the plaintiff's case. Evidence that rebuts or discredits is not necessarily proof. It simply vitiates the effect of opposing evidence. Expert opinion evidence, such as that offered by [the defendant] in this case, certainly affords an effective means of rebutting contrary expert opinion evidence, even if the expert rebuttal would not qualify as proof.
We concluded that the defendant surgeon's opinion was stated with a degree of certainty appropriate for rebuttal purposes, which was less than the "reasonable degree of medical certainty" standard. Id. In the instant case, Dr. Hirsch's opinion in his report that the delayed appearance of urinary leakage "supports," and "strongly supports," a theory of ureteral devascularization, was stated to a sufficient degree of certainty for rebuttal purposes.
