HARRISBURG – On June 29, the state Superior Court affirmed the ruling of a lower court to dismiss a lawsuit claiming that a doctor performing a needle biopsy on a patient’s prostate caused an injury that led to the deterioration of the patient’s pelvic bone.

The Superior Court of Pennsylvania affirmed the dismissal of a lawsuit by Richard Nilles against Dr. Kenneth K.N. Hu of Butler, alleging that Hu negligently positioned Nilles’ body while performing a needle biopsy of his prostate, resulting in osteitis pubus, a condition causing the deterioration of the pelvic bone. 

The case turned on the testimony of Nilles’ expert witness, Dr. M.S. Brodherson, whose testimony the court found unconvincing because he “spoke in scientific generalities, referring to broad theory and hypothesis,” and “acknowledged that his opinion was not rendered with a reasonable degree of medical certainty.” 

Consequently, the court found that Nilles did not effectively provide a causal link between the biopsy performed by Hu and the pelvic condition that allegedly resulted.

In December 2012 Hu performed the biopsy on Nilles. After being diagnosed with osteitis pubus, Nilles sued Hu for negligence in December 2014. 

The case went to a jury trial in August 2016 but was dismissed following a motion by Hu’s legal team, arguing that Brodherson “never anywhere in his testimony formulated or expressed an opinion to a reasonable degree of medical certainty or otherwise that the performance of the biopsy was a factual cause of the osteitis pubus in this case.” 

In September 2016, the trial court denied Nilles’ request for relief, leading Nilles to appeal.

The state appellate panel affirmed the decision of the trial court, citing a lack of evidence, which would have forced the jury to speculate about whether the biopsy Hu performed caused Nilles’ injury. 

In an opinion supported by judges Susan Gantman and Carl Solano, Judge Judith Olson wrote that Brodherson’s testimony “used equivocal language, i.e. ‘could,’ ‘conceivably,’ and ‘possibly,’ in rendering his opinion that Hu may have caused [Nilles’] injury,” and therefore Nilles “did not introduce sufficient evidence to establish the necessary elements to maintain a negligence cause of action."

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