Pennsylvania Superior Court provides clarification on medical malpractice expert testimony.

The plaintiff sued several medical providers, including a surgeon and his surgical practice. The plaintiff’s surgical expert—offered solely against the surgeon and his practice—opined that it was “more likely than not” that the plaintiff’s decedent would have survived absent a breach of the standard of care. He further testified that the patient’s symptoms were “entirely consistent” with a pelvic DVT. At the close of the plaintiff’s case-in-chief, the trial court entered non-suit in favor of the surgeon and his practice on the basis that the testimony was insufficient under Vicari and its progeny.

On appeal, the Superior Court ruled that the entry of non-suit was improper and ordered a new trial against the surgeon and his practice, only. The Superior Court found that on cross-examination, the plaintiff’s expert properly explained that “more likely than not” and “to a reasonable degree of medical certainty” are the same; that he usually testifies in Massachusetts, which is why he used that language on direct. The court found no merit in the surgeon’s argument regarding the “entirely consistent” language used by the plaintiff’s expert. The Superior Court highlighted that the plaintiff’s expert not only testified that he was sure of his opinions, but also provided comprehensive justification for his conclusions.

This case provides important guidance on the requirements of expert testimony in medical malpractice actions under Pennsylvania law. Specifically, experts are not required to “use magic words” but, rather, must provide a sufficient substantive basis for their opinion, not mere speculation.

_{Case Law Alerts, 3rd Quarter, July 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2020 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}