Recent Pennsylvania Superior Court Decision Affirms Defense’s Introduction of Two Medical Experts on the Standard of Care as Proper Corroborative Evidence

In Hassel v. Franzi, 207 A.3d 939 (Pa.Super. 2019), the Superior Court of Pennsylvania addressed whether a defendant, a primary care physician in a medical malpractice case, presented improper cumulative evidence when he introduced expert testimony from two different physicians regarding the standard of care. The Superior Court held that the two experts—a primary care physician expert and a clinical cardiovascular specialist—provided corroborative rather than cumulative evidence because both experts offered their opinions from their respective specialties and approached the standard of care from unique clinical perspectives. The Hassel decision, therefore, firmly establishes a litigant’s ability to use multiple experts to opine on the standard of care when the testimony is corroborative, even if the experts reach the same or similar conclusions regarding the care at issue.

In Pennsylvania, a party who seeks to introduce expert testimony as to a physician’s standard of care must meet the mandate of the Pennsylvania Medical Care Availability and Reduction of Error Act (MCARE Act). See 40 P.S. § 1303.512(c) (setting forth requirements for expert testimony). However, even if a party presents experts who meet the MCARE Act’s requirements, the party must also ensure the experts’ testimony is permissible under the Pennsylvania Rules of Evidence.

Notably, a common issue that arises when proffering two or more medical experts is whether they provide cumulative or corroborative testimony. Generally speaking, Pennsylvania courts may exclude evidence if its probative value is outweighed by the “needless presentation of cumulative evidence.” Pa. R.E. 403. Courts define “cumulative evidence” as “additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989 (Pa.Super. 2007) (citations omitted), appeal denied, 944 A.2d 756 (Pa. 2008). In contrast, courts consider corroborative evidence as “[e]vidence that strengthens or bolsters existing evidence.” Commonwealth v. Flamer, 53 A.3d 82, 88 (Pa.Super. 2012).

The Superior Court considered the issue of cumulative versus corroborative medical expert testimony in Klein v. Aronchick, 85 A.3d 487 (Pa.Super. 2014), appeal denied, 104 A.3d 5 (Pa. 2014). In Klein, the plaintiff sued Craig Aronchick, M.D., claiming Dr. Aronchick was negligent by prescribing a drug she alleged resulted in permanent, progressive kidney disease. The trial court allowed Dr. Aronchick to present three different expert witnesses—a nephrologist/internist, a medical toxicologist and a gastroenterologist—to opine on causation. Ms. Klein appealed the trial court’s decision. The Superior Court concluded the trial court did not abuse its discretion in allowing the testimony of the three experts because each expert “approached the issue from different clinical perspectives.”

Now, against that backdrop is Hassel v. Franzi, where the Superior Court extended the Klein rule to allow corroborative expert testimony regarding the standard of care. In Hassel, the plaintiff, Robert Hassel, brought suit individually and on behalf of his late-wife, Mary Hassel, against the defendants, among others, Joseph J. Franzi, M.D., Ph.D. and William V. Arnold, M.D., Ph.D. Mrs. Hassel had presented to Dr. Arnold, an orthopedic surgeon, with complaints of worsening left knee pain. Dr. Arnold diagnosed Mrs. Hassel with a femur fracture and immobilized her leg. Dr. Arnold appreciated the risk of Mrs. Hassel developing blood clots due to her immobilized leg and advised Mrs. Hassel he would discuss blood clot prevention with her primary care physician, Dr. Franzi. Subsequently, Dr. Franzi advised Ms. Hassel to take aspirin to prevent blood clots.

Approximately two weeks later, Mrs. Hassel began feeling ill and called Dr. Franzi to report her symptoms. She did not reach him, but instead left a message with a staff member. After unsuccessfully calling Dr. Franzi a second time, Mrs. Hassel was taken to the hospital where she died. Her cause of death was determined to be cardiac arrest caused by deep vein thrombosis in her left leg and a subsequent pulmonary embolism.

Dr. Franzi presented both a primary care physician expert and a clinical cardiovascular specialist to testify that his treatment of Mrs. Hassel was within the standard of care. Specifically, both of these experts testified that aspirin was an appropriate treatment for Mrs. Hassel. The plaintiff argued the expert testimony of these two medical experts on the standard of care was “excessively duplicative.” The trial court rejected the plaintiff’s argument by finding that “[e]ach of the experts . . . offered opinions from different specialties, and approached the standard of care issue from different clinical specialties.” The Superior Court upheld this ruling.

In conclusion, it is common in medical negligence cases that a defendant will want to proffer more than one expert to testify as to the standard of care or causation. This is especially true where there are multiple elements involved in the physician’s exercise of reasonable clinical judgment and where the decision-making process is complex because of multiple viable approaches to treat the medical condition. After Hassel, which builds on the Superior Court’s previous decision in Klein, a party should be able to present two or more experts to testify as to the standard of care or causation, so long as the experts offer opinions from different specialties and approach the standard of care or causation issue from different clinical perspectives.

*Jack, a shareholder, works in our Philadelphia, Pennsylvania office. He can be reached jcfarrell@mdwcg.com or 215.575.2787. Nathaniel C. Simon was an associate in the Philadelphia office until this past July, when he left the firm to complete a one-year clerkship in the United States District Court for the Eastern District of Pennsylvania.

_{Defense Digest, Vol. 25, No. 3, September 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}