2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

ased its holding on its findings that the nature of Plaintiff’s injury was itself in dispute (andcould, therefore, have occurred without negligence), and that Plaintiff’s counsel elicitedsufficient testimony from his expert witness (i.e. that Plaintiff’s injury was caused by the poolingof betadine solution during surgery) to constitute an adequate cause of action for malpracticebased upon a standard theory of negligence. The Court concluded, in turn, that the case subjudice was not, in reality, a res ipsa case, and that the trial court properly limited Plaintiff toproceeding on a conventional negligence theory.In Asbury v. Mercy Fitzgerald Hosp., No. 06-15525, 2011 WL 3735272 (C.P. Phila.April 14, 2010), aff’d without opinion, 23 A.3d 1078 (Pa. Super. Jan. 10, 2011), the courtheld that plaintiff was permitted to proceed under a res ipsa loquitur theory because shemet her burden, under § 328D(1), of showing that her nerve injury, sustained under thecircumstances of the surgery performed by defendants, did not ordinarily occur in theabsence of negligence. 2011 WL 3735272 at 12. Defendants argued that a res ipsa loquiturinstruction was inappropriate because plaintiff was required, pursuant to Section328D(1)(b), to show that other causes of plaintiff’s injury were impossible. Id. at p 13. Thecourt disagreed, holding that any purported failure by plaintiff to show that other causes ofplaintiff’s injury were impossible did not prevent plaintiff from carrying her burden toeliminate, as required by Section 328D(1)(b), other possible causes of her injury. Id. at 13.More specifically, in order to warrant a res ipsa loquitur instruction, it was sufficient forplaintiff to show that defendants’ alleged negligence was more likely than not the probableexplanation for her injury. Id. at 13. The doctrine of res ipsa loquitur, the court reasoned,would then allow for the jury to resolve how and by whom the plaintiff’s alleged nerveinjury had been sustained. Id.3. Scientific Evidence – The Frye and Daubert StandardsTestimony by experts is governed by Rule 702 of the Pennsylvania Rules of Evidence.Pa. R. Evid. 702. Rule 702 follows the standard announced in Frye v. United States, 293 F. 1013(D.C. Cir. 1923), that requires scientific evidence to have “general acceptance” in the relevantscientific community. Frye, rather than Daubert, is now clearly the test applied in Pennsylvaniastate cases. Conversely, Federal Rule of Evidence 702 follows the modified Daubert standard.See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).In Ellison v. United States, No. 09-CV-331, 2010 WL 4670359 (E.D. Pa. Nov. 10, 2010),the District Court found the testimony of two expert witnesses reliable in a suit where a patientsuffered a stroke after experiencing hypotension multiple times during an oral surgery. The courtfollowed the Daubert standard and applied a liberal and flexible interpretation of Federal Rule ofEvidence 702 in determining the experts’ reliability.Although the standard of care expert conceded that he did not know whether other oralsurgeons would use or disagree with the standard he proposed, and stated “I think it’s the correctway and that’s my opinion” (emphasis added), the court found that the expert had a reliable basisfor setting forth the procedure as the general standard of care and not merely a personal standardof care. The court found the expert’s testimony reliable even though the expert could not pointto any texts that were specifically relevant, because the expert used indirect references that17