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We’ve blogged before about our objections to the ALI’s proposal to do away with “reasonable degree of [fill in the blank] certainty” and replace it with the just “more likely than not” standard for deciding liability. We got into some vigorous debates with other legal bloggers about this issue, but we got run over by a train when we raised these objections before the ALI itself. ALI’s train had already left the station.
Anyway, we’re happy to report that at least Bexis’ home state of Pennsylvania does not appear to be backing down one iota from its position that experts are supposed to express opinions to more certainty than the proverbial coin flip.
Earlier this week – ironically on the first day of this year’s annual meeting of the ALI – Pennsylvania’s intermediate appellate court decided Griffin v. University of Pittsburgh Medical Center-Braddock Hospital, ___ A.2d ___, 2008 WL 2081527 (Pa. Super. May 19, 2008). The court reaffirmed that the “reasonable degree of medical certainty” standard could not be satisfied with mere coin-flip, more likely than not testimony – even if the expert also uses “magic words.”
What happened in Griffin, is that a medical expert, after reciting that his opinions were held “to a reasonable degree of medical certainty,” proceeded to reduce that standard to mere 51%. Griffin was a medmal case involving an in-hospital injury, a dislocated/broken shoulder. The issue was whether that injury was caused by the patient being physically restrained (which could have been due to malpractice), or whether it was caused by a grand mal seizure (which could not have been due to malpractice).
In Pennsylvania, like many (perhaps most) states, an expert opinion selecting between these two asserted causes must be stated to a “reasonable degree of medical certainty.” Well, after duly reciting the necessary magic words, the plaintiff’s expert dumbed it right down to more likely than not (51%):

Q. Am I correct, Dr. Speer, that you are unable to state, with reasonable medical certainty, whether Ms. Griffin’s injury was caused by a seizure versus forcible restraint?
A. My answer to your question is not as-as simple as I would like for it to be. I think the two possibilities that could have created her shoulder injury [sic]. One of the two occurred. Unfortunately, there’s a void of evidence or a lack of documentation to support either. I think that from a reasonable degree of medical certainty, that is choosing one or the other, a fifty-one to forty-nine percent consideration, I think that the least implausible consideration would be the-that she was restrained and had-her shoulder was injured in her attempts to be restrained because she was resisting that.
Q. So you’re giving that the fifty-one percent?
A. I am, yes, sir.

2008 WL 2081527, at *5 (emphasis added).
The trial court let the plaintiff’s expert get away with this. There was a plaintiff’s verdict, and on appeal the plaintiff claimed that form – the magic words – should control over substance. If the plaintiff had succeeded, in effect the ALI rule would have become Pennsylvania law, because “reasonable degree of medical certainty” would have become, in practice, 51%.
The court, however, was having none of it:

In the instant case, despite [plaintiff’s expert’s] use of any so-called “magic words,” the substance and totality of his testimony did not support the proposition, to the legally requisite degree of certainty, that forcible restraint caused [plaintiff’s] shoulder injury. Rather, it appears that he rendered an opinion, to a “reasonable degree of medical certainty,” that there was a 51% probability that negligent forcible restraint caused the injury over a nearly equal 49% probability that a non-negligent factor, a seizure, caused the injury. This opinion does not equate to an opinion stating to a reasonable degree of medical certainty that negligent forcible restraint caused [plaintiff’s] injury.

2008 WL 2081527, at *6 (footnote omitted) (emphasis added). Magic words to not permit an expert to equate “reasonable degree of medical certainty” with “more likely than not” and get away with it. Because expert causation testimony is an essential element of a malpractice case, not only was the verdict reversed, but the defendant received judgment in its favor – an expensive penalty, indeed, for plaintiff playing games with longstanding standards for expert testimony.
Pennsylvania, at least, remains determined to hold professionals to real professional standards, and not to the standards lay jurors use to decide cases.
We agree.