2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Plaintiff. Defendant appealed that determination to the Superior Court based on the experttestimony provided on behalf of Plaintiff. The Superior Court held that “a ‘51%’ degree ofcertainty, was akin to an opinion stated to a ‘more likely than not’ degree of certainty, which islegally insufficient.” Id. at 1003. The Superior Court went on to further state that “despite Dr.Speer’s use of any so-called ‘magic words,’ the substance and totality of his testimony did notsupport the proposition, to the legally requisite degree of certainty, that forcible restraint causedMs. Griffin’s shoulder injury.” Id.2. Increased Risk of HarmIt is settled law in Pennsylvania that a plaintiff must establish that his injuries wereproximately caused by the acts or omissions of his physician in order to set forth a case ofmedical malpractice. See Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978). Under Hamil,Pennsylvania courts recognized a reduced standard of —increased risk of harm—under certaincircumstances such as delay in diagnosis, testing or treatment resulting in a higher risk of harmto the patient.Under Section 323(a) of the Restatement (Second) of Torts (1965), a plaintiff has theburden of proof to establish:1. that the physician deviated from the standard of care;2. that the deviation increased the risk of harm to the patient; and3. that the harm in fact occurred.See Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990). Under Pennsylvania law, it is not sufficientto state that a deviation might have or probably increased the risk of harm; rather, the medicaltestimony must establish to a reasonable degree of medical certainty that the deviation didincrease the risk of harm. See Jones v. Montefiore Hosp., 431 A.2d 920 (Pa. 1981).Only after a plaintiff first establishes competent medical expert testimony to supportthese foundation elements to a reasonable degree of medical certainty is the case permitted to goto the fact finder for a causal determination of whether the harm in fact resulted from theincreased risk. See Hamil, 392 A.2d 1280. Expert testimony on the second stage of an increasedrisk of harm case—the relaxed causation stage—allows an expert to testify that the increased riskmay have caused the harm. See Id.In Hankey v. York County Prison, No. 3:05-CV-0136, 2009 WL 2043392 (M.D. Pa. July8, 2009), Plaintiff brought suit under Pennsylvania medical malpractice law and under § 1983.Ryan Rorhbaugh, deceased, was substituted by Jessica Hankey as Plaintiff following his deathon June 7, 2006. Rorhbaugh was incarcerated at several facilities that used third-party healthcare providers. During Rorhbaugh’s incarceration, he was diagnosed with malignant melanoma.Plaintiff brought claims against the third-party providers, and several of their employees in theUnited States District Court for the Middle District of Pennsylvania. In response, the Defendantsfiled motions for summary judgment.45