Griffin v. University of Pittsburgh Medical

• Decision Date: 19 May 2008
• Docket Number: No. 544 WDA 2007.,544 WDA 2007.
• Citation: 950 A.2d 996
• Parties: Rita GRIFFIN, An Individual, Appellee v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER-BRADDOCK HOSPITAL, Appellant.
• Court: Pennsylvania Superior Court

950 A.2d 996

Rita GRIFFIN, An Individual, Appellee v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER-BRADDOCK HOSPITAL, Appellant.

No. 544 WDA 2007.

Superior Court of Pennsylvania.

Argued March 18, 2008.

Filed May 19, 2008.

Reargument Denied July 17, 2008.

John C. Conti, Pittsburgh, for appellant.

Patrick J. DeMay, Bethel Park, for appellee.

BEFORE: BENDER, BOWES and TAMILIA, JJ.

OPINION BY BENDER, J.:

¶ 1 The University of Pittsburgh Medical Center — Braddock Hospital ("Hospital") appeals from the judgment entered in favor of Rita Griffin following a jury trial in this medical malpractice case. For the following reasons, we reverse.

¶ 2 The trial court set forth the following recitation of facts:

Plaintiff Rita Griffin presented to UPMC Braddock Hospital on August 20, 2003 complaining of abdominal discomfort off and on for the past several weeks. She had a history of Crohn's Disease. She was admitted for work-up and possible treatment. Testing revealed a possible mass involving the terminal ileum. On August 25, 2003, an exploratory laparotomy and ileocolectomy were performed. Post-operatively, Ms. Griffin exhibited some confusion and agitation in the early morning hours of August 26, 2003. Around 8:00 a.m. on August 26, 2003, Ms Griffin began to complain of right shoulder pain. She was diagnosed with a right posterior shoulder fracture/dislocation, which required open reduction and internal fixation with subscap transfer on August 29, 2003. She required three additional surgeries thereafter including a shoulder replacement and later revision thereof.

Trial Court Opinion (T.C.O.), 5/31/07, at 1-2. According to her medical expert, Ms. Griffin has a permanently "dysfunctional shoulder" with decreased range of motion. Deposition of Kevin P. Speer, M.D. ("Speer Deposition"), 11/9/06, at 38-39. This results in a limited ability to do things involving "lifting her arm overhead, repetitive overhead activities, reaching out in front of her, [and] lifting anything heavy[.]" Id. at 40. Her ability to perform activities of daily living however, such as self-care, feeding, bathing and dressing, are not significantly impaired. Id. at 40-41.

¶ 3 Ms. Griffin commenced a medical malpractice action against Hospital by filing a praecipe for writ of summons on July 28, 2004, followed by the filing of a complaint on December 28, 2004. She averred that her shoulder injury could not have occurred absent negligence on the part of the agents, servants, or employees of Hospital. Complaint, 12/28/04, at ¶ 34.

¶ 4 A jury trial began on November 14, 2006. At trial, Ms. Griffin presented the videotaped testimony of her expert witness, Kevin P. Speer, M.D., an orthopedic surgeon and shoulder surgery specialist. Speer Deposition, at 9-10. As further explained below, Dr. Speer opined that Ms. Griffin's shoulder injury was caused either by a grand mal seizure (with "49%" certainty) or forcible restraint (with "51%" certainty), the latter of which would constitute negligence. On the other hand, Hospital presented the expert witness testimony of Mark Baratz, M.D., an orthopedic surgeon with additional training in shoulder, elbow, and hand surgery. Deposition of Mark Baratz, M.D., 11/15/06, at 5. Dr. Baratz opined, to a reasonable degree of medical certainty, that Ms. Griffin's shoulder injury was caused by a "classic nocturnal grand mal seizure" and not by forcible restraint. Id. at 27. He further opined that Ms. Griffin's documented amnesia, thrashing or agitation in bed, and the specific type of shoulder injury incurred were indicative of a grand mal seizure. Id. at 28, 31.

¶ 5 On November 17, 2006, the jury returned a verdict in favor of Ms. Griffin, awarding her damages in the amount of $2,277,131.00.¹ Hospital filed a motion for post trial relief on November 22, 2006. On February 27, 2007, the trial court entered an order denying Hospital's motion for post trial relief and entered judgment on the verdict in favor of Ms. Griffin.² Hospital filed a timely notice of appeal on March 16, 2007.

¶ 6 Hospital sets forth the following "Statement of the Questions Involved" in its brief pursuant to Pa.R.A.P. 2116(a):

I. WHETHER JUDGMENT NOTWITHSTANDING THE VERDICT MUST BE GRANTED TO DEFENDANT WHERE PLAINTIFF'S EXPERT OFFERED HIS CAUSATION OPINION WITH 51 PERCENT PROBABILITY, THUS FAILING TO PROVIDE THE REQUISITE DEGREE OF MEDICAL CERTAINTY; AND WHERE THE ONLY POTENTIAL FACTUAL BASIS TO SUPPORT PLAINTIFF'S CAUSATION THEORY WAS A HEARSAY NOTE RULED INADMISSIBLE AT TRIAL, THUS RENDERING PLAINTIFF'S EXPERT'S PRE-RECORDED DEPOSITION TESTIMONY LACKING IN FOUNDATION?

II. WHETHER, IN THE ALTERNATIVE, A NEW TRIAL MUST BE GRANTED WHERE THE TRIAL COURT CHARGED THE JURY ON RES IPSA LOQUITUR, EVEN THOUGH PLAINTIFF'S EXPERT FAILED TO ESTABLISH THE INJURY AS ONE WHICH WOULD NOT OCCUR ABSENT NEGLIGENCE; FAILED TO ELIMINATE OTHER POSSIBLE CAUSES; AND ADDITIONALLY OFFERED A SPECIFIC THEORY OF NEGLIGENCE?

III. WHETHER, IN THE ALTERNATIVE, REMITTITUR MUST BE GRANTED WHERE THE JURY VERDICT DEVIATED SUBSTANTIALLY FROM WHAT COULD BE REASONABLE COMPENSATION?

Hospital's brief at 5 ("suggested answers" omitted).

¶ 7 First, Hospital argues that Ms. Griffin's expert witness, Dr. Speer, failed to render his opinion to the requisite degree of medical certainty. Accordingly, Hospital argues that the trial court erred by denying Hospital's motion for judgment notwithstanding the verdict (JNOV).

A JNOV can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant. When reviewing a trial court's denial of a motion for JNOV, we must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict. In so doing, we must also view this evidence in the light most favorable to the verdict winner, giving the victorious party the benefit of every reasonable inference arising from the evidence and rejecting all unfavorable testimony and inference. Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact. If any basis exists upon which the jury could have properly made its award, then we must affirm the trial court's denial of the motion for JNOV. A JNOV should be entered only in a clear case.

Buckley v. Exodus Transit & Storage Corp., 744 A.2d 298, 304-305 (Pa.Super. 1999) (citations omitted).

Because medical malpractice is a form of negligence, to state a prima facie cause of action, a plaintiff must demonstrate the elements of negligence: "a duty owed by the physician to the patient, a breach of that duty by the physician that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of harm." With all but the most self-evident medical malpractice actions there is also the added requirement that the plaintiff must provide a medical expert who will testify as to the elements of duty, breach, and causation.

Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d 1061, 1070-71 (2006) (citations omitted). Thus, expert testimony is required in a medical malpractice case "where the circumstances surrounding the malpractice claim are beyond the knowledge of the average layperson[.]" Vogelsberger v. Magee-Womens Hosp. of UPMC Health Sys., 903 A.2d 540, 563 n. 11 (Pa.Super.2006). The "plaintiff is ... required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered." Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888, 892 (1990).

In determining whether the expert's opinion is rendered to the requisite degree of certainty, we examine the expert's testimony in its entirety. Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa.Super.2004) (citation omitted). "That an expert may have used less definite language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty." Id. (citation omitted). Accordingly, an expert's opinion will not be deemed deficient merely because he or she failed to expressly use the specific words, "reasonable degree of medical certainty." See Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139 (2000) (indicating that "[i]n this jurisdiction, experts are not required to use `magic words'" but, rather, "this Court must look to the substance of [the expert's] testimony to determine whether his opinions were based on a reasonable degree of medical certainty rather than upon mere speculation"). Nevertheless, "[a]n expert fails this standard of certainty if he testifies `that the alleged cause `possibly', or `could have' led to the result, that it `could very properly account' for the result, or even that it was `very highly probable' that it caused the result." Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa.Super.1997) (citation omitted). See also Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1031 (Pa.Super.2001) (finding expert opinion that defendant "more likely than not" deviated from standard of care insufficiently certain).

Vicari v. Spiegel, 936 A.2d 503, 510-11 (Pa.Super.2007) (footnote omitted). See also McMahon v. Young, 442 Pa. 484, 276 A.2d 534, 535 (1971) (concluding expert did not state opinion to requisite degree of certainty by testifying that defendant's negligence "probably" caused plaintiff's injury and noting that "the intent of our law [is] that if the plaintiff's medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to...