Pennsylvania Superior Court Holds in Favor of Atlee Hall, Unanimously Reversing Trial Judge’s Ruling on Sufficiency of Medical Expert’s Testimony and Remanding for a New Trial
Written By Mark Atlee
Mark Atlee and Melissa Jabour recently obtained a significant and precedential decision from the Pennsylvania Superior Court, which reversed the trial court judge’s ruling striking the testimony of one of Plaintiff’s expert witnesses and granting a mandatory non-suit in a medical malpractice case. The trial court held that Plaintiff’s expert had failed to testify with the required specificity/certainty, thereby striking his testimony and granting the non-suit as to that defendant. Attorneys Atlee and Jabour successfully argued to the Superior Court that the expert’s testimony, when taken in its entirety, was more than sufficient to meet the required burden. Significantly, the Superior Court indicated that its opinion in this case is precedential and reaffirmed that no “magic words” are needed for a medical expert to testify to the requisite level of certainty.
In the instant case, Defendant, Dr. Joseph Voystock, performed an emergency hemicolectomy on a patient following a bowel perforation during the performance of a colonoscopy. Approximately three weeks later, she returned to Lancaster General Hospital with complaints of pain, swelling and bluish discoloration in her right leg. The Emergency Room physician order a Doppler ultrasound of the lower extremities to rule out deep vein thrombosis (DVT). While there was no indication of DVT in the lower extremity, there was an abnormal finding in the proximal femoral vein, which might be indicative of a clot in the pelvic region. The ER physician requested a consultation from a vascular surgeon for an arterial evaluation and an evaluation of the patient’s right lower extremity. Dr. Voystock performed the evaluation of his patient in the Emergency Department and found no indication of an arterial obstruction. He did not, however, evaluate the venous system, instead indicating that the patient could be discharged. The ER physician subsequently discharged the patient, and she collapsed in the elevator going up to her apartment, about an hour after discharge. She died from a large clot that had traveled from her pelvic region to her lung.
Plaintiff’s expert vascular surgeon, Dr. David Campbell, testified on direct examination that it was his opinion to a “reasonable degree of medical certainty” that Dr. Voystock deviated from the standard of care by failing to suspect and order the appropriate testing to rule out a clot in the pelvic region. He testified that the patient was at an increased risk, given her recent extensive abdominal surgery and her obvious signs of a clot, including one-sided pain, swelling and discoloration. That, coupled with an abnormal finding on the venous Doppler ultrasound, should have led “a first year resident” to make this diagnosis. Dr. Campbell further testified that had this clot been diagnosed, providing anticoagulation would have reduced the risk to the patient and prevented her death. On cross examination, Dr. Campbell testified that his opinions were “more likely than not” and that, to him, “more likely than not” meant the same as “reasonable degree of medical certainty.” Further, he indicated that he did not know the legal definition of “reasonable degree of medical certainty.” The trial court ruled that his use of this terminology and failure to know the definition of “reasonable degree of medical certainty” were fatal flaws in his testimony, thereby striking his testimony in its entirety and granting a mandatory non-suit as to Dr. Voystock and his practice.
The Superior Court, in examining this issue, looked to the totality of Dr. Campbell’s testimony. The Court relied upon Vicari v. Spiegel and its progeny, affirming that the trial court mustanalyze the totality of the expert’s testimony and not look at isolated statements or specific terms. Here, the Court concluded that although Dr. Campbell used less definite language and did not know the legal definition of “reasonable degree of medical certainty,” he testified on redirect that he was “quite certain [his] opinions are correct.” Additionally, while Dr. Campbell could not state absolutely whether the patient’s death could have been avoided had the diagnosis been made and treatment rendered, her death would have been “much, much, much less likely.” The Superior Court concluded that when Dr. Campbell’s testimony was viewed in its entirety, it more than met the standard of certainty required for expert testimony, explicitly indicating that its opinion in this case is precedential.
This opinion is obviously significant for our client in his search for justice following the unnecessary death of his wife. It is also significant to the justice sought by all individuals in Pennsylvania seeking to hold medical professionals accountable for their negligent actions, which lead to unnecessary injury or wrongful death.