Superior Court Reaffirms The Law on Limitations To Scope of Expert Opinions By Treating Physicians

In the case of Kunkel v. Abington Memorial Hospital, No. 2024 Pa. Super. 298 (Pa. Super. Dec. 13, 2024 Stabile, J., Lane, J., and Lazarus, J.) (Op. by Stabile, J.) (Lazarus, J., concurring in the result), the Pennsylvania Superior Court addressed various issues regarding expert testimony in a medical malpractice case.

On one issue, the court confirmed that it was not an abuse of discretion by the trial court to exclude one of the Plaintiff’s identified expert witnesses as cumulative. The court generally noted that cumulative evidence is additional evidence that supports a fact already established by other evidence in the case.

On another issue of note, the Pennsylvania Superior Court reaffirms the well-settled rule that, while treating physicians may testify as experts without being identified under Pa. R.C.P. 4003.5(a), such doctors are limited to opinions formed in the course of their treatment, not opinions developed in anticipation of litigation.

Here, the court found that the causation opinions of two (2) of the Plaintiff’s treating physicians were properly excluded by the trial court because those physicians only formed their opinions on causation in preparation for this litigation.

The court noted that its review of the medical records from those physicians did not contain any hint of any such opinions on causation. The Superior Court agreed that the exclusion of those opinions on causation were required by the Plaintiff’s failure to identify those experts as expert witnesses for trial during the course of discovery as required by the Rules of Civil Procedure.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith law firm for bringing this case to my attention.

Plaintiff's Med Mal Experts Permitted to Testify But Scope of Testimony Somewhat Curtailed

In the case of Rotella v. Community Medical Center, No. 2022-CV-3943 (C.P. Lacka. Co. Sept. 5, 2024 Nealon, J.), the court addressed motions seeking to preclude defense expert witnesses in a medical malpractice case.

According to the Opinion, the Plaintiffs filed a Motion In Limine seeking to preclude the testimony of various expert witnesses for the defense on several grounds.

First, the Plaintiff asserted that the experts do not satisfy the competency requirements as set forth in Section 512 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 Pa. C.S.A. §1303.512.

The Plaintiffs additionally asserted that the testimony of the multiple defense experts concerning causation was needlessly cumulative.

Third, the Plaintiff asserted that two (2) of the experts discussed irrelevant and unfairly prejudicial information in their Pre-Trial Reports regarding unrelated medical conditions.

After his review of the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that, based upon the expert reports and the CVs submitted, the defense experts at issue were found to possess the necessary qualifications to address the medical causation issues.

Judge Nealon additionally found that the opinions of the various defense experts were from different medical specialties and distinct clinical perspectives and, as such, constituted corroborative, rather than needlessly cumulative evidence.

As to the third issue, Judge Nealon granted the Plaintiff’s Motion In Limine and found that, since the infectious disease care provided to the male Plaintiff was not a subject of the Plaintiffs’ negligence claims, the defense infectious disease expert would be precluded from offering opinions that the infectious disease treatment in the matter complied with the standard of care.

Judge Nealon additionally ruled that, given that the COVID-19 pandemic did not affect the care involved in this case or otherwise impact the applicable standard of care, the defense corporate liability expert would be barred from mentioning “hospitals across the country were be inundated with patients who were victims of the COVID pandemic” at the time of the male Plaintiff’s hospitalization.

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Court Addresses Admissibility of Allegedly Cumulative Expert Testimony in Medical Malpractice Case

In the case of Evans v. Lavallee, No. CV 20-00879 (C.P. Lyc. Co. 2022 Carlucci, J.), the court granted in part and denied in part a Plaintiff’s Motion In Limine relative to the testimony of defense medical expert in a medical malpractice case.

According to the Opinion, this matter arose out of an accident during which the Plaintiff sustained burns when oxygen was allegedly caused to ignite, resulting in burns to the Plaintiff during the course of a surgery.    

The Plaintiffs argued that the expert testimony of the expert in question should be precluded because the expert report was provided after the deadline for experts had expired, because the expert was not of an appropriate specialty, and because the expert testimony would be cumulative or duplicative with the testimony of other defense experts.

The court ruled that, in the event the expert is found to be competent at trial, the expert would be allowed to testify in his field of plastic surgery. 

However, the court noted that, unless the Defendants established a need at trial for testimony from this plastic surgeon expert on the separate subject of the operating room standard of care for an anesthesiologist, the plastic surgeon expert testimony would be precluded as cumulative given that the Defendants had other experts to testify in that regard.

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Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 7, 2023).

Admissibility of Similar Expert Opinions in a Medical Malpractice Case

In the case of Snyder v. Scranton Hospital Company, LLC, No. 19-CV-83 (C.P. Lacka. Co. Dec. 14, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the admissibility of the expert testimony in a medical malpractice case. 

This matter arises out of a malpractice action during which the Plaintiff alleges that he suffered permanent left ulnar damage secondary to stretching or compression trauma caused by his improper positioning and inadequate monitoring during the course of a surgery.

In support of his claims, the Plaintiff has produced expert reports from an anesthesiologist, a rheumatologist, and a nurse with regards to the relevant standards of care and medical causation, along with additional expert reports from orthopedic surgeons concerning causation and the allegedly resulting damages.

The Defendants filed a Motion In Limine seeking to limit the expert testimony that the Plaintiff intended to present. More specifically, the Defendant sought to preclude any testimony by the rheumatology expert with regards to the standard of care and causation issues. The Defendants asserted that this expert should not be permitted to testify as he is not qualified to offer opinions on the standard of care and causation under the mandates of the MCARE Act, that the expert’s opinions would be cumulative in light of the opinions being offered by the Plaintiff’s other experts, and given that the rheumatologist expert's testimony was impermissibly speculative.

After his review of the record and the expert reports, Judge Nealon found that the rheumatologist expert offered by the Plaintiff did not satisfy the standard of care familiarity, same subspeciality, and similar approved board-certification requirements set forth in §512(c) of the MCARE Act, or the “related field of medicine” criteria in §512(e) of that Act, in order to be determined to be competent to address the standard of care under the facts of this case.

However, the court also found that the rheumatologist expert offered by the Plaintiff was sufficiently qualified under §512(a)(b) of the Act in order to testify as to the medical causation.

The court additionally noted that, since the causation opinions offered by the various different types of experts presented by the Plaintiff contained discrete reasoning offered by different types of medical specialists addressing the issue of causation from distinct clinical perspectives, the causation testimony of these different experts was found to be corroborative, rather than needlessly cumulative.

The court additionally found that the defense challenges to the rheumatologist's testimony based upon Pa. R.E. 703 and Pa. R.C.P. 207.1 under an argument that the testimony was impermissibly speculative was devoid of merit. The court noted that the rheumatologist’s opinions were based upon medical reports, depositions, and other evidence in the record. It was also noted that the expert did not rely upon novel scientific evidence or methodology that has not been accepted in the field of rheumatology.

As such, the court ruled that the rheumatologist would not be allowed to testify as to the applicable standard of care, but would be allowed to testify on the causation issues.

Anyone wishing to review a copy of this decision may click this LINK.

Recoverability of Future Medical Expenses in an Auto Accident Case Addressed

A number of civil litigation trial issues were reviewed in the case of Farese v. Robinson, No. April Term 2015 1084 (C.P. Phila. Co. Sept. 6, 2018 Kennedy, J.), including the issue of how to handle a claim for future medical expenses in a motor vehicle accident matter.  

The case arose out a rear-end motor vehicle accident.   The case proceeded to trial and a jury entered a verdict in excess of $2.5 million dollars in favor of the Plaintiff.   The Defendants filed post-trial motions which brought about this Rule 1925 Opinion by the trial court judge.  

With respect to the Plaintiff’s claims for future medical expenses, defense asserted that a new trial on damages was necessary given that the Plaintiffs introduced evidence concerning future medical costs without reducing those costs in accordance with the cost containment provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), or Act 6.  

The trial court rejected the Defendant’s position as well as the defense’s reliance upon the case of Pittsburgh Neurosurgery Assoc’s v. Danner, 733 A.2d 1279 (Pa. Super. 1999), as the court found that that case was limited by the Superior Court to an application to past medical bills that had already been incurred by an injured party for treatment that had already been provided.  

Instead, the trial court relied upon the case of Moorehead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001).  Also, the trial court also noted that the medical bills in this case that were presented to the jury had apparently already been subjected to the cost containment provisions of the MVFRL.   

The trial court in this case of Farese noted that its Opinion was that future medical costs are not considered “payable” within the meaning of §1722 or §1797 of the MVFRL.    The court believed that to claim that bills for medical services not yet performed should be considered “capable of being paid” in this context, “creates an unpersuasive logical fallacy.”   The court noted that, to rule otherwise, would create confusion as any medical service not yet performed would be considered “payable.”  

This particular court believed that future medical costs can only exists as being “not payable” under §1797.  

Practically speaking, the trial court found that the Plaintiff’s expert life care planner had properly opined as to the future cost of medical care under the “usual and customary charge(s)” mandated by 75 Pa. C.S.A. §1797(a).   The expert offered his opinion at trial that life care planners base protections on future medical care upon the usual and customary costs going into future because it is too speculative to know what reimbursements will be from month-to-month.

In entering its ruling, the Farese court pointed to the Federal Middle District Court decision of Kansky v. Showman, No. 3:09-cv-1863, 2011 WL 1362245 (M.D. Pa. April 11, 2011 Munley), in which that Federal District Court held that future medical bills are not “payable” as future medical payments are not currently outstanding and able to be paid and given that Defendants cannot guarantee that any future medical expenses will in fact be paid.    That court ruled that the payment of future medical expenses is merely speculative as a carrier could become bankrupt or could deny future medical bills for a variety of reasons.  [However, neither the Farese court nor the Kansky court pointed out that whether a Plaintiff will actually undergo future medical treatment once they settle their case or secure a verdict is speculative as well].   

The Kansky court held that, because the insurance benefits are not necessarily due and owing at the time of a trial and given that nothing could compel a carrier to pay a lump sum for future medical expenses, a Plaintiff’s future medical bills cannot be considered to be “payable” under Act 6.  

The Farese court followed this reasoning in its own decision and denied the defense’s request for a new trial based upon the handling of the future medical expenses claim at trial.  

Here is a LINK to the "Future Medical Expenses" Label, which can always be freely access down the right hand column of the Tort Talk Blog at www.TortTalk.com to access blog posts on this particular troublesome and unsettled topic.

The Farese decision is also notable in that the trial court held that the expert testimony offered by the Plaintiff from a neuro-radiologist was not considered to be cumulative when compared to the other expert medical evidence offered by the Plaintiff.   The court felt that the expert’s expertise in the area of neuro-radiology allowed that doctor to provide a nuanced opinion of the injuries sustained by the Plaintiff that better explained the injuries to the jury in a manner different then that from the Plaintiff’s other medical experts.  

The Farese court also addressed the issue of Defendant’s Motion for Remittitur against the Plaintiff’s substantial verdict.   In this regard, the court provided a detailed analysis of the current state of Pennsylvania law in addressing claims that a jury’s verdict is allegedly excessive.  

In the end, this court found that the jury’s award for damages was not excessive and did not shock the judicial conscience.  

Anyone wishing to review a copy of this decision may click this LINK.  

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (Oct. 16, 2018).