2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

B. Standard of Care – Medical Malpractice1. The Plaintiff Must Prove that the Defendant Breached the Standardof Care. In Most Cases, This Requires Expert Testimony.(a)Expert Witness RequirementIt is settled law in Pennsylvania that in order to establish a prima facie case ofnegligence, a plaintiff must also prove that his injuries were proximately caused by negligentconduct of the alleged tortfeasor. See Flickinger Estate v. Ritsky, 305 A.2d 40 (Pa. 1973). Thus,liability may not be imposed merely upon proof of negligent conduct by the tortfeasor, but,rather, hinges upon a plaintiff’s proof of a causal nexus between the negligent conduct and theplaintiff’s asserted injury. See Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978); see also Maurer v.Trs. of the Univ. of Pa., 614 A.2d 754 (Pa. Super. Ct. 1992), appeal granted, 626 A.2d 1158 (Pa.1993). In most medical malpractice cases, expert testimony is required to establish bothnegligence and causation. In certain circumstances, however, the doctrine of res ipsa loquiturapplies and no expert testimony is needed. Recent cases demonstrating both the general rule andthe exception are summarized below.(b)General Rule – Expert Testimony RequiredIn Rose v. Annabi, 934 A.2d 743 (Pa. Super. Ct. 2007) , the Superior Court arrived at twoholdings: (1) that, in order for a settled co-defendant to be included on a verdict sheet, there mustbe a qualified expert witness to testify as to the alleged breach of the standard of care of thesettled co-defendant; and (2) that, in order for a co-defendant to be entitled to a comparativenegligence jury charge, and have the plaintiff’s decedent’s name included on the verdict sheet foran apportionment of liability, there must be expert testimony indicating that some act ofplaintiff’s decedent substantially caused his death.Edward Rose filed a professional negligence action against Dr. Michael Annabi and CodefendantsDr. Onuorah Umen, Dr. Ralph Korkor, John F. Kennedy Memorial Hospital and JFKSouthwest. He claimed that Defendants’ medical negligence combined to cause him harm indelaying the diagnosis of colon cancer, which if found earlier would have been more easilytreated or cured. Mr. Rose died after initiating suit and his daughter, Crystal Rose, wassubstituted as Plaintiff. At trial, all Defendants had settled with Plaintiff, with the exception ofDr. Annabi. At the conclusion of the trial, Dr. Annabi insisted that the settled co-defendants’names should appear on the verdict slip and that a comparative negligence jury charge should begiven along with the inclusion of Plaintiff’s decedent on the verdict sheet for the jury to considerapportionment of comparative negligence. Judge Maier of the Philadelphia Court of CommonPleas, denied Dr. Annabi’s requests and the jury returned a verdict in favor of the Plaintiff for$908,989.71 in damages.On appeal, the Superior Court affirmed the trial court’s holdings and reasoned that “in theabsence of any qualified witness to testify to the standard of care of [co-defendant] Dr. Korkor,there was insufficient evidence to include Dr. Korkor on the verdict sheet.” Id. at 3. TheSuperior Court further reasoned that excluding Plaintiff’s decedent from the verdict sheet for anapportionment of liability was proper because “Dr. Annabi failed to causally relate Rose’s11