2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

1996)). The Court then noted that Plaintiffs’ expert had indeed performed the surgery at issueand that the opinions of Plaintiffs’ expert are supported by medical literature. Id. Therefore, theCourt concluded that the opinions of Plaintiffs’ expert were not based solely on subjective beliefand held that he was qualified to testify as an expert at trial.In Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 981 A.2d 145 (Pa. 2009), thePennsylvania Supreme Court held that Plaintiff’s expert reports expressed the requisite degree ofspecificity and medical certainty for a prima facie case of malpractice.By way of background, Plaintiff, after giving birth to her first child at Chestnut HillHospital in 1965, developed peripheral circulatory failure. Stimmler, 602 Pa. at 544. As part ofher medical care, Defendant Physician performed an antecubital cutdown on the inside ofPlaintiff’s right and left elbows. Id. Plaintiff was discharged but experienced complaints of painand shortness of breath for the next thirty-six years. Id. None of Plaintiff’s physicians coulddetermine the cause of her condition until an echocardiogram performed in 1999 uncovered anabnormality. Id. Subsequent echocardiograms in early 2000 revealed the presence of a twelve toeighteen inch catheter coiled in Plaintiff’s right atrium and passing into her right ventricle. Id. at544-45.Plaintiff filed a medical malpractice suit in 2001 against Chestnut Hill Hospital andnumerous physicians who had treated her in 1965. Id. In 2004, various defendants filed Motionsfor summary judgment, which were granted by the trial court. Id. at 547. In support of itsdecision to grant summary judgment, the trial court held that Plaintiff’s expert reports “failed toestablish, to a degree of medical certainty, that Plaintiff’s injuries were caused by a fragmentedcatheter left behind during the removal of catheters from cutdown procedures in May 1965.” Id.Plaintiff’s experts stated, essentially, that the 1965 procedure had the “highest likelihood” ofresulting Plaintiff’s condition and/or that the catheter fragment “must have” come from thecutdown in May 1965. Id. at 548. The Superior Court upheld the granting of summaryjudgment.The Pennsylvania Supreme Court granted Plaintiff’s Petition for Allowance of Appealand held that the trial court and Superior Court erred in granting and upholding the summaryjudgment motions. Id. at 566. In support of its decision to reverse and remand, the SupremeCourt began by noting that expert witnesses are not required to use “magic words,” rather, “thesubstance of their testimony must be examined to determine whether the expert has met therequisite standard.” Id. at 555 (citing Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581, 585 (1997)).Based upon this authority, at its progeny, the Court concluded that there was sufficient evidencefor a jury to evaluate whether the catheter left in Plaintiff’s body was inserted during the May1965 procedure. Id. at 556. Moreover, the Court found that when read in their entirety,Plaintiff’s expert reports expressed the requisite degree of specificity for Plaintiff to show aprima facie cause of action. Id. at 559. Plaintiff’s witnesses concluded that a catheter used in1965 had the “highest likelihood” and was the “most likely” cause of Plaintiff’s condition. Id.The Court found that when these terms were read in the context of the respective reports, it wasclear that the experts were offering their opinions with a high degree of medical certainty. Id.27