Plaintiff will be required to bring in expert to validate medical malpractice allegations

By Tomas Kassahun | Nov 7, 2018

HARRISBURG - The Superior Court of Pennsylvania has upheld a trial court’s ruling that requires a plaintiff to bring an expert witness in a case of alleged medical negligence. 

Judge Joseph Seletyn wrote the ruling, issued on Oct. 26.

Onofrio Positano underwent a cardio-cauterization procedure in February 2016, then filed a complaint of Medical Negligence and Intentional Infliction of Emotional Distress against Geisinger Medical Center, Geisinger Cardiology Department and physicians Kimberly Skelding and Kahlon Talwlndardeep.

“Prior to the procedure, a cardiologist presented herself as the primary surgeon who would perform the procedure and stated that a new resident would assist her,” the opinion stated. “Positano claimed the resident performed the procedure until a problem arose.” 

The Superior Court of Pennsylvania has upheld the trial court’s ruling which required the plaintiff to bring an expert witness in a case of alleged medical negligence.

He further maintains that Geisinger released him from the hospital even though he should have been observed for a 24-hour period. He experienced pain and discomfort and, following an ultrasound, learned that he had a hematoma from the catheterization procedure, which could take up to a year to heal, the opinion stated.

“He continued to suffer extreme pain, which prevented him from walking or bending his right leg,” the Superior Court said. “After a follow-up appointment, he discovered that he had a damaged femoral nerve and would require additional surgery.” 

Geisinger filed preliminary objections to the complaint, saying that Positano cannot pursue a medical negligence claim without expert testimony. Geisinger further argued that Pennsylvania does not recognize a cause of action for intentional infliction of emotional distress; the alleged facts do not support a claim for punitive damages; and the complaint failed to state a claim upon which relief could be granted, the court added.

After the trial court determined that Positano would not be able to establish his claims of professional negligence without expert testimony, the Superior Court agreed.

The Superior Court said an expert opinion is required to make a determination about the standard of care to employ in the conduct of a cardiac catheterization, or as to the proper use of a resident physician in training in the conduct of a cardiac catheterization.

“We further agree that the Certificate of Merit that Positano filed was inadequate, as it stated expert testimony was unnecessary for prosecution of the claim,” the opinion stated. “Without the support of expert testimony, the complaint’s allegations were insufficient to state a cause of action.”

According to the opinion, the procedure and alleged injuries are not within the common fund of

knowledge such that a jury could determine whether the doctors deviated from a standard of care and whether that deviation caused injury without expert testimony.

“Positano could not establish his claims without expert testimony and, therefore, the complaint, coupled with the Certificate of Merit filed, failed to state a claim,” the opinion stated.

The Superior Court added that Positano has not alleged any exceptional circumstances and he continues to maintain expert testimony is unnecessary.

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