2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

testimony, Defendant presented his own expert witnesses, who testified that Defendant’streatment of Decedent did not fall below the standard of care.Likewise, Plaintiff relied on the testimony of her expert cardiologists on the issue ofcausation. Specifically, the expert cardiologists opined that when Defendant tested Decedent, hisleft coronary artery was already substantially occluded, and that occlusion would have beendetected by catheterization. Additionally, Plaintiff offered the expert testimony of a boardcertifiedforensic pathologist, who testified that the near-total occlusion of Decedent’s leftcoronary artery was a factual cause of his death. Importantly, Defendant’s own experts alsoagreed that catheterization would have detected the occlusion.After the close of evidence, the jury returned a verdict in favor of Defendant.Specifically, the jury indicated that although it found Defendant’s conduct to be below theapplicable standard of care, it also found that Defendant’s negligence was not a factual cause ofDecedent’s death. Following the denial of Plaintiff’s post-trial motions, Plaintiff appealed to theSuperior Court, seeking a new trial on the grounds that the jury’s conclusion as to causation wasagainst the weight of the evidence and was inconsistent with the medical testimony as tocausation that had been proffered at trial.Applying the increased risk of harm standard, the Superior Court found that the trial courtabused its discretion by refusing to grant Plaintiff’s motion for a new trial. Specifically, theCourt noted that, under the increased risk of harm standard, “the plaintiff must introducesufficient evidence that the defendant’s conduct increased the risk of plaintiff’s harm.” SeeCarrozza v. Greenbaum, 866 A.2d 369, 380 (Pa. Super. Ct. 2004). Clarifying this standard, theCourt further held that:[O]nce the plaintiff introduces evidence that a defendantphysician’snegligent acts or omissions increased the risk of theharm ultimately sustained by the plaintiff, then the jury must begiven the task of balancing the probabilities and determining, by apreponderance of the evidence, whether the physician’s conductwas a substantial factor in bringing about the plaintiff’s harm.Applying this standard and considering the strength of Plaintiff’s expert testimony with regard tocausation (especially in relation to the weak expert testimony proffered by Defendant), theSuperior Court concluded that the jury’s verdict was “irrational” in light of the uncontradictedand uncontested evidence of causation presented by Plaintiff, and remanded the case for newtrial. See also Qeisi v. Patel, No. 02-8211, 2007 U.S. Dist. LEXIS 9895 (E.D. Pa. Feb. 9, 2007)(holding testimony of expert witness that nine-month delay in performance of mammogram wassufficient to establish that Defendant increased Plaintiff’s risk of harm of developing cancer forpurposes of stating prima facie case of negligence); Gannon v. United States, 571 F. Supp. 2d615 (E.D. Pa. 2007) (Federal Tort Claims Act case holding Plaintiffs failed to prove thatPlaintiff-husband’s cancer was caused by a vaccine contaminated with a virus that Plaintiffsalleged Defendant had negligently approved and further holding that: 1) under Pennsylvania lawPlaintiffs had to prove both general causation (i.e. that the vaccine could cause cancer inhumans) and specific causation (i.e. that it caused cancer in the Plaintiff); 2) they neededadmissible expert testimony in order to prove causation and, 3) Plaintiffs’ expert failed to meet48