J   -S12024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THERESA ADAMS                                         1   IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellant

                       v.

DAVID A. VAUGHN, M.D., AND
SURGICAL SPECIALISTS OF LANCASTER

                            Appellee                          No. 1383 MDA 2016


             Appeal from the Judgment Entered August 17, 2016
              In the Court of Common Pleas of Lancaster County
                     Civil Division at No(s): CI -13-03124


BEFORE:     PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                        FILED APRIL 06, 2017

        Theresa Adams appeals from the judgment entered on August 17,

2016, in the Court of Common Pleas of Lancaster County after the trial court

granted David A. Vaughn, M.D.'s and Surgical Specialists of Lancaster's

(collectively Dr. Vaughn or Defendants) motion for compulsory nonsuit at

the close of Adams' case -in -chief. In this timely appeal, Adams raises three

issues; she claims the trial court erred: (1) in determining plaintiff's expert

on liability did not   testify to   a   reasonable degree of medical certainty, (2) in

granting defendant's motion for nonsuit where plaintiff had provided               a   prima

facie case against Surgical Specialists of Lancaster, and (3) in striking the

affidavit of Plaintiff's counsel, April     L.   Strang-Kutay. After   a   thorough review

of the submissions by the parties, the certified record, and relevant law, we

affirm.
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         We adopt the factual and procedural history of this matter as recited

by the trial judge, the Honorable James      P.   Cullen, in his Opinion and Order

of August 5, 2016,1 denying Adams' motion to remove nonsuit and for            a   new

trial.

         On February 13, 2012, [Adams]      presented at the Lancaster
         General Hospital Emergency Department complaining of
         abdominal pain. After an ultrasound revealed that [Adams]
         suffered from gallstones, Dr. Vaughn advised [Adams] that she
         needed to have her gallbladder removed and that the procedure
         could be done laparoscopically. This procedure was performed
         by Dr. Vaughn on February 14, 2012.

         Following surgery, [Adams] continued to experience severe pain
         and remained hospitalized. A CT scan, performed on February
         16, 2012, showed that she had a pelvic abscess, which was
         drained the same day. Tests revealed that the contents of the
         abscess included bile and feces, indicative of a bowel perforation.
         A second CT scan on February 18, 2012, located a .2 cm hole in
         [Adams'] bowel, which was surgically repaired. After this second
         surgery, [Adams] was treated for peritonitis, continued to
         experience pain and other symptoms and missed time from
         work.

         At trial, on February 9, 2016, [Adams] produced one expert on
         liability, I. Michael Leitman, M.D., who testified that he reviewed
         [Adams'] medical records from Lancaster General Hospital and
         other hospitals, the deposition testimony of Dr. Vaughn and Dr.
         Leslie, and the reports by other physicians who reviewed the
         case. Based on his review of these items, Dr. Leitman testified
         that he had formed an opinion concerning the alleged breach of
         the standard of care within a reasonable degree of medical
         certainty. He then went on to define reasonable degree of
         medical certainty as meaning "based upon evidence and the
         records that I have reviewed that, more likely than not the


1 Although judgment was not entered on the docket until August 17, 2016,
the trial court's order and opinion were dated August 5, 2016.


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        opinion I have is supported by the records and materials." The
        remainder of Dr. Leitman's testimony was devoted to
        development of his expert opinion.

        On February 11, 2016, at the close of [Adams'] case, Defendants
        moved orally for compulsory nonsuit and subsequently filed a
        supplemental motion for compulsory nonsuit.             Following
        argument by the parties, the Court granted the nnotion.[2]
Order and Opinion, 8/5/2016, at 1-3.

        Adams' first two issues can be resolved together.              Our standard of

review regarding the refusal to remove     a   nonsuit   is as   follows:

        An order denying a motion to remove a compulsory nonsuit will
        be reversed on appeal only for an abuse of discretion or error of
        law. A trial court's entry of compulsory nonsuit is proper where
        the plaintiff has not introduced sufficient evidence to establish
        the necessary elements to maintain a cause of action, and it is
        the duty of the trial court to make a determination prior to
        submission of the case to a jury In making this determination
        the plaintiff must be given the benefit of every fact and all
        reasonable inferences arising from the evidence and all conflicts
        in evidence must be resolved in plaintiff's favor.

        Additionally, a compulsory nonsuit is valid only in a clear case
        where the facts and circumstances lead to one conclusion-the
        absence of liability.
Neidert    v.   Charlie, 143 A.3d 384, 387-88    (Pa. Super. 2016) (citations and

quotation marks omitted).

        Instantly, the trial court granted nonsuit on favor of Dr. Vaughn

because Adams' expert, Dr. Leitman, failed to give his professional opinion



2
  Here, the trial court added a footnote indicating the argument was
conducted in chambers and was not recorded. We also note that Adams'
counsel was offered time to respond to the written supplemental motion for
nonsuit, but declined.


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to the requisite degree of certainty.     The trial judge explained his basis for

analysis in his Opinion and Order.

        [I]t    is settled law that if the circumstances of a medical
        malpractice action are beyond the knowledge of a layperson, the
        plaintiff must present an expert to testify to a reasonable degree
        of medical certainty that the actions of the defendant deviated
        from the standard of care and that deviation caused the
        plaintiff's injury. Vicari v. Spiegel, 936 A.2d 503, 510 (Pa.
        Super. 2007), aff'd 989 A.2d 1277 (Pa. 2010). An expert is not
        required to testify with absolute certainty or to rule out all
        alternative causes of injury, Winchel v. Jain, 925 A.2d 782,
        794 (Pa. Super. 2007), but the expert's testimony, taken in its
        entirety, must express reasonable certainty that the acts
        complained of were a substantial factor in bringing about the
        injury. Hreha v. Benscoter, 554 A.2d 527, 527 (Pa. Super.
        1989).      As the Pennsylvania Supreme Court has explained,
        "[t]he issue is not merely one of semantics." McMahon v.
        Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971).

              The opinion of a medical expert is evidence. If the fact -
              finder chooses to believe it, he can find as fact what the
              expert gave as an opinion. ... Perhaps in the world of
              medicine, nothing is absolutely certain. Nevertheless,
              doctors must make decisions in their own profession every
              day based on their own expert opinions. Physicians must
              understand that it is the intent of our law 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 make a legal
              judgment.

        Id.
        The term "reasonable degree of medical certainty" is not clearly
        defined in the case law. However, it has been noted that "an
        expert fails the standard of certainty if he testifies that the
        alleged cause 'possibly' or 'could have' led to the result, or even
        that it could 'very properly account' for the result, or even that it
        was 'very highly probable' that it caused the result." Griffin v.
        Univ. of Pittsburgh Med. Ctr.-Braddock Hosp., 950 A.2d

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        996, 1000 (Pa. Super. 2008). Additionally, an expert fails to
        satisfy the standard of certainty where that expert's testimony is
        framed in terms of "more likely than not." Id. (citing Corrado v.
        Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1031 (Pa.
        Super. 2001) (holding that, viewed in its totality, medical
        expert's testimony did not rise to the requisite level of certainty
        where he testified that "more likely than not in my opinion
        [defendant] deviated from the standard of care")).
Order and Opinion, 8/5/2016, at 4-5.        We find no error of law in the trial

court's use of this analytic basis.

        Initially, we examine Dr. Leitman's direct and redirect testimony
regarding standard of care. On direct examination, Dr. Leitman testified:

        Q: And in your opinion, Dr. Leitman, did Dr. Vaughn meet the
        standard of care in the performance of the surgery?

        A: Dr. Vaughn did not meet the standard of care in performing
        the surgery.

        Q: And on   what do you base that opinion?

        A: It's based upon the following: That the bowel was injured.
        That there was no other circumstance, in my opinion, that would
        have caused the bowel to be injured, and that he didn't go back
        and check the area where the instruments were placed to make
        sure that the intestine was not injured prior to concluding the
        operation. [3]
N.T. Trial,   2/9/2016 at 119.



3   We do not quote Dr. Leitman's entire testimony herein.     We note that Dr.
Leitman could not point to any specific action documented in the medical
records that demonstrated Dr. Vaughn's negligence.            Essentially, Dr.
Leitman opined Dr. Vaughn had to have misplaced at least one of the
laparoscopic instruments, outside the field of view of the surgical camera, to
have punctured the bowel. Further, Dr. Leitman opined that the injury could
only have occurred during Dr. Vaughn's laparoscopic surgery.


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      On redirect, Dr. Leitman testified similarly:

      Q: And you have indicated that a perforation of the bowel in a
      laparoscopic procedure is a very remote rare circumstance?

      A:   It   is.

      Q: And when that circumstance happens does it happen where
      the patient is more complex, has adhesions, infection, other
      problems?

      A: Yes.

      Q: And so, if a   patient undergoes a procedure with a virgin
      abdomen, never having had this type of surgery before with any
      adhesions or any anomalies that could confuse a surgeon, if a
      bowel puncture is made during that surgery, is that evidence of
      substandard care?

      A:   It   is.

Id. at 166-67.

      This review of Dr. Leitman's direct and redirect testimony shows his

opinion that the injury suffered by Adams could only happen through

substandard (negligent) care.4 However, that apparent confidence    is   belied

when examining the totality of his testimony in light of the standard of

certainty required in   a   medical negligence action.

      Even prior to testifying as to his opinion, Dr. Leitman was asked the

following questions on direct examination.



4 Dr. Leitman essentially provided res ipsa loquitor testimony. He could not
opine with certainty which of the laparoscopic instruments caused the injury,
only that one of them must have caused the injury and that the only way an
instrument can cause the injury is by negligent placement.


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        Q: Following review of those items, Dr. Leitman, were you able
        to form opinions and conclusions within a reasonable degree of
        medical certainty concerning this matter?

        A: Yes.

        Q: And how to you define reasonable medical   certainty?

        A: What I define as reasonable medical certainty is based upon
        evidence and the records that I have reviewed that, more likely
        than not the opinion that I have is supported by the records and
        materials.

        Defense Counsel: Your Honor, I would object to the witness
        giving a statement of what the law is with regard to a reasonable
        degree of medical certainty.

        The Court: Your response?

        Plaintiff's Counsel: My response is that when the doctor is giving
        his opinion in reasonable medical certainty, he should know what
        it means in order to formulate his answer.

        The Court: Well, ladies and gentlemen, the doctor may believe
        what he wishes about the law; I will tell you what the law is.
        You must follow only my instructions on the law.        So he is
        certainly permitted to give you his understanding about what he
        is doing and what he views the standard to be but, again, I will
        tell you what the legal standard is and that is the standard you
        must apply.
Id., at 99-100.
        Here, we note that Dr. Leitman was clearly asked what "reasonable

medical certainty" meant to him, when he stated he was testifying to that

standard.     Dr. Leitman clearly stated he believed that his opinion, based

upon evidence and the medical records, is more likely than not.        This was

unambiguous testimony.       Adams' counsel explicitly told the trial court that



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was the information she was seeking         -   Dr. Leitman's working definition of

"reasonable medical certainty."    Id. at   100.

     The standard of "more likely true than not" was raised again during Dr.

Leitman's cross-examination.

      Q: Iwant to talk a little bit about whether this injury could have
     happened at some time other than during the lap chole.E51 In
     your initial report dated March 15th, on page 2.

     A: Can I have my reports back? Sorry. Page 2?

      Q: Page 2, about halfway down the page, under Opinion of Care
      Rendered.

     A: Yes.

      Q: Numbered paragraph No. 4.    I'm going to read the first part
      of that sentence.     And please tell me if I misstate it.     I
      sometimes do that when I'm trying to stand and look and read
      all at the same time.

      More likely than not the perforation to the small intestine "ileum"
      occurred during the operation of 2/14/12.

      Did I read   that part of the sentence correctly?

     A: You did.

      Q: More likely than not it happened during       that surgery.

     That would suggest to me, if I understand your use of the
     English language, that it's possible it happened at some time
     other than that surgery?



5 "Lap chole" is a shortened version of laparoscopic cholecystectomy, which
is the formal name of the surgery Dr. Vaughn performed and which was at
issue.


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        A: Possibly, but less likely.

Id. at 151-52.
        Finally,         this exchange took place on redirect and then re -cross

examination:

        Q (redirect): Doctor, having reviewed the materials in this case
        and having issued two reports well before Dr. Leslie [Defendants'
        medical expert] gave his testimony, has it been your opinion
        from the very beginning that this bowel puncture was made
        during the laparoscopic surgery?

        A: Yes.

        Q:    And do you hold that opinion within reasonable medical
        certainty?

        A: I do.

        Q: No      further questions.

        The Court: Any recross?

        Q (recross): On that last point I want to make sure we are clear.
        You have acknowledged under oath that it is possible that that
        injury happened at some time other than the lap chole; right?

        A: Possibly, but much less likely.

        Q: In fact,        your terminology   is   more likely than not?

        A: That's what I testified to.

        Q: And          that's the best that you can testify to?

        A:   It   is.

Id. at 168-69.
        Our review of the certified record demonstrates Dr. Leitman repeatedly

testified that, to him,          a   reasonable degree of medical certainty meant that

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his opinion was "more likely than not."        In addition to that testimony, Dr.

Leitman also agreed that, contrary to his direct testimony, it was indeed

possible that the injury did not occur during Dr. Vaughn's laparoscopic

procedure.6      Accordingly, Dr. Leitman contradicted his own testimony that

the injury could only have occurred through Dr. Vaughn's negligent care.

        In light of the foregoing, we find that the trial court did not err in

determining Dr. Leitman's testimony was not provided to       a   sufficient level of

certainty. Therefore, there was no error in granting the compulsory nonsuit

in   favor of Dr. Vaughn.

        Finally, Adams argues the trial court erred in striking the affidavit of

Attorney Strang-Kutay that detailed her recollection of the argument held in

chambers on the motion for compulsory nonsuit regarding whether the

doctor testified to the requisite degree of certainty.       The trial judge has

opined he did not need counsel's recollection of the argument. Specifically,

        While the affidavit is a reasonable representation of [Adams']
        counsel's recollection of what took place in chambers after the
        close of [Adams'] case, Defense counsel asserts that it differs in
        some respects from his recollection. (Defendants' Motion to
        Strike Affidavit,     23).
                            '11     It likely differs from the Court's
        recollection in some respects as well. Notwithstanding such
        differences, the fact remains that the parties present in
        chambers all recall what was said and the affidavit does not

6
  On cross-examination, Dr. Leitman also agreed that medical literature
admitted the possibility of injury to the small bowel during a laparoscopic
cholecystectomy, although he still claimed negligence was the only instant
possibility. N.T. Trial, 2/9/2016, at 146-47.



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        change what each recalls. The Court has discretion in deciding
        to admit or exclude and affidavit. See Stumpf v. Nye, 950
        A.2d 1032, 135-36 (Pa. Super. 2008). In the present case,
        because the affidavit does not add to the understanding of what
        took place and is unnecessary to more fully detail the
        circumstances, the Court will exclude it.
Opinion and Order, 8/5/2016, at 4.

        We have reviewed the affidavit of the argument which was held in

chambers and it does nothing to dissuade us from our conclusion that the

trial court properly determined Dr. Leitman's testimony had failed to meet

the proper standards of certainty.           Other issues raised in the affidavit are

irrelevant as counsel made no objections at the time of trial.' Therefore, we

discern no abuse of discretion on the part of the trial court in striking the

affidavit. Adams    is   not entitled to relief on this issue.

        Because the trial court did not abuse its discretion or commit an error

of law in either denying Adams' motion to remove nonsuit or in striking the

affidavit, Adams   is    not entitled to relief.

        Judgment affirmed.




7 There is no indication in the certified record that Plaintiff's counsel
requested the argument be placed on the record or that such request was
denied.
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Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 4/6/2017




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