2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

against Defendants after the death of their son. At trial, Plaintiffs’ expert testified that there wasonly one way to perform the procedure at issue. Defendants presented multiple experts, whotestified that there were other acceptable approaches to perform the procedure. As a result, thedistrict court submitted the “two schools of thought” charge to the jury.On appeal, the Third Circuit affirmed. The court held that the “two schools of thought”charge was appropriate. The court explained “[w]hen a physician chooses between appropriatealternative medical approaches, harm which results from physician’s good faith choice of oneproper alternative over the other, is not malpractice.” Id. at 3.In Barr v. Beck, No. 99-16065, 2011 Pa. Dist. & Cnty. Dec. LEXIS 287 (Pa. Com. Pl.Feb. 3, 2011) (Trial Order), affirmed without opinion, 2011 Pa. Super. LEXIS 3729 (Pa.Super. Ct. July 25, 2011), the Plaintiff contended that the foundational requirement for a“two schools of thought” instruction had not been met. Citing Jones v. Chidester, the courtstated that “[t]he well-established case law clearly and unequivocally obligates a physicianonly to present evidence that his or her method ‘is advocated by a considerable number ofrecognized and respected professionals.’” The court further stated that the “PennsylvaniaSupreme Court has refused to quantify the number of professionals who must accept themethod.” Id. (citing Jones v. Chidester, 610 A.2d at 969) (“[W]e do not attempt to place anumerical certainty on what constitutes a ‘considerable number.’”. Rather, the courtnoted that a more flexible approach should be used, where “an expert witness who providesfactual reasons to support his claim that there is a considerable number of professionalswho agree with the treatment employed by a defendant physician ‘suppl[ies] the answers’and, hence the necessary foundation for the instruction on the ‘two schools of thought.’”Id. (citing Jones v. Chidester, 610 A.2d at 969).C. Causation – Medical MalpracticeIt is also necessary that the plaintiff prove by a preponderance of evidence that the breachof duty was the legal cause of the injury. While this sounds simple enough, it is far morecomplicated.1. Reasonable CertaintyIn order to establish the element of proximate cause, the plaintiff first has the burden ofestablishing, with a “reasonable degree of medical certainty,” that the injury in question didresult from the negligent act alleged. McMahon v. Young, 276 A.2d 534 (Pa. 1971). Experttestimony fails to meet this reasonable certainty requirement in a medical malpractice actionwhen the Plaintiff’s expert testifies that the alleged negligence possibly caused or could havecaused the Plaintiff’s injury, that such negligence could very properly account for the injury, oreven that it is very highly probable that Defendant’s negligence caused the poor result. Hreha v.Benscoter, 554 A.2d 525 (Pa. Super. Ct. 1989) (citing Kravinsky v. Glover, 396 A.2d 1349,1355-56 (1979)), appeals denied, 569 A.2d 1367 (Pa. 1989), 571 A.2d 383 (Pa. 1989). Similarly,testimony that a doctor “more likely than not” deviated from the standard of care, and that theplaintiff “more likely than not” suffered harm as a result, is insufficient to state a prima faciecase of medical malpractice. Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022 (Pa.Super. Ct. 2001). In determining whether an expert testified to the requisite degree of medical43