PHILADELPHIA – The Superior Court of Pennsylvania recently upheld a lower court ruling that granted a request for “compulsory non-suit” in a lawsuit filed against Dr. David A. Vaughn and Surgical Specialists of Lancaster.

The appeal to the Superior Court came after the Court of Common Pleas of Lancaster County granted the non-suit motion in August 2016 and found that plaintiff Theresa Adams’s liability expert, Dr. I. Michael Leitman, “did not testify to a reasonable degree of medical certainty.”

According to the Superior Court order, Vaughn told Adams during a February 2012 emergency room visit that she had gallstones and needed to have her gallbladder removed. Vaughn performed the surgery at Lancaster General Hospital.

After she “continued to experience severe pain” following the surgery, medical personnel at the hospital discovered that there was a .2 centimeter hole in Adams’s bowel, according to court records. That issue was addressed through a second operation, and Adams needed to be treated for peritonitis.

Adams alleged that she “continued to experience pain and other symptoms and missed time from work,” the Superior Court order said.

The Superior Court ruling said the expert witness Adams used at the Feb. 9, 2016, trial to prove the defendants’ liability testified that, based on his review of Adams’s relevant medical records, “he had formed an opinion concerning the alleged breach of the standard of care within a reasonable degree of medical certainty.”

The common pleas court approved the non-suit motion submitted by Vaughn, stating that the expert’s opinion offered during his testimony was not sufficiently certain.

The Superior Court agreed.

“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,” the ruling said. “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.”

The trial court also threw out an affidavit submitted by Adams’s counsel, April L. Strang-Kutay. Adams alleged that the attorney’s affidavit about a conversation held in the trial court judge’s chambers was relevant to the outcome of the non-suit ruling. However, the common pleas court said the affidavit was not needed to rule on the motion.

The Superior Court said in its ruling that the affidavit “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.”

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