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Medical Negligence Lawyers
Philadelphia, Pennsylvania
MEDICAL EXPERTS - WHEN & HOW THEY HELP YOU WIN
By, Norman Perlberger, Esquire1
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V. Hamil Standard
On the issue of causation, what if expert cannot establish this link to an absolute certainty, but is able to provide an opinion “stated to a reasonable medical certainty” that the conduct of the physician increased the risk of harm or decreased the plaintiff’s chances for survival?
In the famous and landmark case of Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978), the Pennsylvania Supreme Court had to determine if a plaintiff could satisfy its burden of proof in a medical malpractice case by having an expert opinion stated that an increased risk of harm to the decedent had come about as a result of a physician’s negligent conduct. The expert could not opine that the negligent acts or omissions had, with a reasonable medical certainty, caused decedent’s death.
The plaintiff was brought to the hospital, suffering from chest pains. An electrocardiogram was ordered, but due to a faulty electrical outlet, the EKG could not be performed. A second EKG was ordered by the treating physician, who, after ordering the EKG, left the hospital. A second EKG machine could not be found, and upon receiving no further help, Mrs. Hamil transported her husband to the private office of a Dr. Saloom, whereupon Mr. Hamil died while an EKG was being performed.
The expert witness for the plaintiff testified that had Mr. Hamil been treated properly, he would have had a 75% chance of surviving the attack. The expert also testified that this substantial chance of recovery was terminated by defendant's failure to provide prompt treatment. Defendant's expert testified that Mr. Hamil would have died irrespective of the treatment rendered.
Relying on Section 323 of the Restatement of Torts 2d, the Supreme Court extrapolated from this section that the testimony of the pathologist expert did make out a prima facie case. Section 323 provides:
"§ 323. Negligent Performance of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize [*269] as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking."
The High Court held:
[T]he effect of § 323(a) is to relax the degree of certitude normally required of plaintiff's evidence in order to make a case for the jury as to whether a defendant may be held liable for the plaintiff's injuries: Once a plaintiff has introduced evidence that a defendant's negligent act or omission increased the risk of harm to a person in plaintiff's position, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.
Hamil v. Bashline, supra, also held that "[i]n establishing a prima facie case, the plaintiff need not exclude every possible explanation of the accident; it is enough that reasonable minds are able to conclude that the preponderance of the evidence shows defendant's conduct to have been a substantial cause of the harm to plaintiff." 392 A.2d at 1285.
A good discussion on the law that has developed in this area is the case of Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990). Summarizing the line of cases since Hamil v. Bashline, supra, the Supreme Court stated the law for cases where such qualifying expert opinion would suffice:
An example of this type of case is a failure of a physician to timely diagnose breast cancer. Although timely detection of breast cancer may well reduce the likelihood that the patient will have a terminal result, even with timely detection and optimal treatment, a certain percentage of patients unfortunately will succumb to the disease. This statistical factor, however, does not preclude a plaintiff from prevailing in a lawsuit. Rather, once there is testimony that there was a failure to detect the cancer in a timely fashion, and such failure increased the risk that the woman would have either a shortened life expectancy or suffered harm, then it is a question for the jury whether they believe, by a preponderance of the evidence, that the acts or omissions of the physician were a substantial factor in bringing about the harm. See, Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981).
It is often difficult for a patient-plaintiff to demonstrate that a physician's negligence was a substantial factor in causing injury, because a patient-plaintiff cannot prove the events which would have occurred, had the physician not acted negligently. If the physician proves that the injury would have been sustained without his or her negligence, then the physician is not liable for the injury.
Since the burden is on the patient-plaintiff, however, this standard often treated patient-plaintiff unfairly. Accordingly, the Pennsylvania Supreme Court has held that once a patient-plaintiff shows that a physician-defendant's negligence increased the risk of harm and that harm actually occurred, sufficient evidence has been offered to submit the case to a jury.
The fact pattern in Mitzelfelt was: The hospital claimed that a directed verdict should have been granted in its favor, as plaintiff’s expert was unable to state, with a reasonable degree of medical certainty, that the plaintiff's injuries were caused by the negligence of the anesthesiologist. Dr. Shenkin testified that the compromise in blood pressure was sufficient to cause paraparesis. Mrs. McGrath testified during her deposition that there was a thirty point drop in blood pressure. Dr. Shenkin testified that in twenty percent of these cases, the patient will be weaker following surgery, irrespective of the treatment. As he stated during cross examination, no physician could testify to a reasonable degree of medical certainty that the harm was caused by malpractice. The most that could be said was that the drop in blood pressure increased the likelihood that harm would have resulted. However, because the plaintiff's expert could only state that there was a 75% chance that Mr. Hamil would have survived, the trial court determined that his testimony failed to establish, with the required degree of medical certainty, that the alleged negligence of the defendant was the proximate cause of the harm, and directed a verdict in favor of the defendant. Relying on Hamil, the appellate court reversed.
Interestingly, plaintiff’s expert did not use the pivotal words that the defendant’s negligence “increased the risk of harm” to the patient. Nevertheless, the High Court found his testimony to be sufficient:
The expert who testified on behalf of the Mitzelfelts did not use the words "increased the risk of harm" in his opinion. However, when his testimony is taken as a whole, it clearly met that standard. Reviewing the evidence in the light most favorable to the verdict winner and "giving the benefit of every fact and every reasonable inference of fact" to the appellant, we believe that the appellant met the [*67] burden required. Jones, supra. We do not require experts to use "the magic words" when testifying. Rather, we look to the substance of their testimony to determine whether it meets the standard required. "Section 323(a) was designed to relax a plaintiff's burden of proving causation, not to compound it." Jones v. Montefiore Hospital, supra, 494 Pa. at 418, 431 A.2d at 924 (emphasis in original).
In analyzing this case under the Bashline standard, we employ a two part test. The first step is to determine whether the expert witness for the appellants could testify to a reasonable degree of medical certainty that the acts or omissions complained of could cause the type of harm that the appellant suffered. In this case, Dr. Shenkin testified that a thirty point drop in blood pressure was significant enough to compromise the blood pressure to the spinal cord. Further, a compromise of the blood pressure to the spinal cord can cause paraparesis. As such, Dr. Shenkin's testimony rose to the level required by the first prong of the analysis.
The second step is to determine whether the acts complained of caused the actual harm suffered by the appellant. This is where we apply the relaxed standard. As the experts all testified, twenty percent of patients do poorly after this surgery. As such, it would have been impossible for any physician to state with a reasonable degree of medical certainty that the negligence actually caused the condition from which Mrs. Mitzelfelt suffered. The most any physician could say was that he believed, to a reasonable degree of medical certainty that it could have caused the harm. Once Dr. Shenkin rendered this opinion, it then became a question for the jury whether they believed it caused the harm in this case.
A defendant cannot escape liability because there was a statistical possibility that the harm could have resulted without negligence. "The fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability unless he can show that such other cause would have produced the injury independently of his negligence." Majors v. Brodhead Hotel, 416 Pa. 265, 273, 205 A.2d 873, 878 (1965). Once there is sufficient testimony to establish that (1) the physician failed to [**895] exercise reasonable care, that (2) such failure increased the risk of physical harm to the plaintiff, and (3) such harm did in fact occur, then it is a question properly left to the jury to decide whether the acts or omissions were the[***20] proximate cause of the injury. See Bashline, supra, 481 Pa. at 262, 392 A.2d at 1286; Gradel v. Inouye, 491 Pa. at 541, 421 A.2d at 677. "The jury, not the medical expert, then has the duty to balance probabilities and decide whether defendant's negligence was a substantial factor in bringing about the harm." Bashline, supra, 481 Pa. at 273, 392 A.2d at 1288-89; Gradel, 491 Pa. at 544, 421 A.2d at 679.
