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Monestersky v. Uniontown Hospital


October 28, 2009


The opinion of the court was delivered by: Judge Nora Barry Fischer


Re: Defendant The Uniontown Hospital's Motions in Limine regarding evidence of increased risk of harm (Docket No. 66)

This matter is before the Court on Defendant The Uniontown Hospital's ("Defendant Hospital") Motion in Limine to Preclude Plaintiff from Introducing any Evidence concerning increased risk of harm. (Docket No. 66). Upon consideration of the Motion and supporting Brief (Docket Nos. 66 and 67), as well as Plaintiff's Response (Docket Nos. 95),*fn1 oral argument held on October 26, 2009, and for the following reasons, Defendant Hospital's Motion in Limine concerning evidence of increased risk of harm [66] is DENIED.

Defendant Hospital argues for the exclusion of Dr. Leggat's testimony concerning Plaintiff's increased risk of developing future harms on the basis that Pennsylvania law requires that in order to present such evidence, Plaintiff must have actually experienced the harm. (Docket No. 67 at 2 (citing Vogelsberger v. Magee-Women's Hospital of UPMC Health System, 903 A.2d 540, 563-564 (Pa. Super. Ct. 2006)).*fn2 Defendant Hospital contends there is no dispute that Dr. Leggat testified that Plaintiff has an increased risk of potentially developing future ailments, but there is no evidence that Plaintiff currently suffers from any such condition. (Docket No. 67 at 2). Accordingly, it maintains that Plaintiff should not be permitted to offer any evidence regarding an increased risk of future harm. (Docket No. 67 at 2).

Plaintiff argues in response that Defendant Hospital misapplies Pennsylvania law in this context. (Docket No. 95 at 1). The testimony in dispute, Plaintiff contends, is prognosis testimony, i.e. the harm that may result from Plaintiff's now existing injuries. ( Id. ). Plaintiff posits that this evidence about the possible future effects (i.e. early menopause and related symptoms) of the claimed injury (i.e. post-partum abscesses caused by Group A Streptococcus infection leading to a hysterectomy and salpingo-oophorectomy)*fn3 does not have to be stated with the same medical certainty required for causation. ( Id. (citing Villari v. Termix Inter'l Inc., 692 F.Supp. 568 (E.D. Pa. 1988); Docket No. 6 at 4-5). Further, Plaintiff argues that the case law cited by Defendant Hospital is inapposite because it relates to the causation standard applicable to a claim of negligence and the resultant increased risk of harm of an injury, where that injury underlies a plaintiff's claim. (Docket No. 95 at 3). Specifically, Defendant Hospital's case citations support Plaintiff's allegations that the Hospital's negligence increased her risk of having a total hysterectomy. ( Id. ). They do not apply to the challenged testimony of Dr. Leggat that Plaintiff's hysterectomy increased the risk of future harms. ( Id. ). Thus, Plaintiff argues that Dr. Leggat's testimony concerning the effects of her hysterectomy should be permitted at trial. ( Id. ). The Court agrees for the following reasons.

In Pennsylvania, in order to prove medical malpractice, a plaintiff must establish "a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of harm." Griffin v. Univ. of Pittsburgh Med. Center-Braddock Hosp., 950 A.2d 996, 999-1000 (Pa. Super. Ct. 2008)(quoting Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070-71 (Pa. 2006)). A plaintiff must satisfy her burden of proving medical negligence by showing that she suffered an injury that would not have occurred in the absence of the defendant's negligence. Quinby, 907 A.2d at 1071.

In addition to the damages Plaintiff seeks for having to undergo a total abdominal hysterectomy and bi-lateral salpingo-oophorectomy, Plaintiff claims damages related to injuries she may suffer as a result of her hysterectomy. (Docket No. 6 at 10, 14, 18). The challenged testimony of Dr. Leggat describes Plaintiff's risk for developing future injuries which might flow from the initial injury, i.e. the hysterectomy, allegedly caused by Defendants' negligence. Her treatment records document both a history and findings consistent with this testimony. ( See Docket No. 29-18 at 2;*fn4 Docket No. 29-19 at 3;*fn5 Docket No. 29-20 at 2;*fn6 Docket No. 29-5 at 14*fn7 ).

In this Court's estimation, this testimony is correctly labeled by Plaintiff as "prognosis testimony," which Pennsylvania law permits expert witnesses to offer at trial. See Villari, 692 F.Supp. at 573 ("experts should not be barred from testifying about the medical risks plaintiffs face as a result" of alleged injuries caused by a defendant's alleged medical negligence); see also Carter v. United States Steel Corp., 568 A.2d 646, 664 (Pa. Super. Ct. 1990)("a plaintiff in a personal injury suit may introduce expert testimony to support a claim that [she] may suffer certain future harm as a result of a past injury"). As both a treater and medical expert on damages,*fn8 Dr. Leggat may offer her prognosis of Plaintiff's future harms given that she is already injured. See Boyle v. Pennsylvania R.R., 170 A.2d 865, 867 (Pa. 1961). In fact, Plaintiff has testified that she is already experiencing certain symptoms related to premature menopause. For example, she reported to her doctor in January and February 2007 that she was suffering from various symptoms, i.e. hot flashes and mood swings, both of which are linked to menopause. (Deposition Transcript of Plaintiff Vita Monestersky 11/5/2008, at p. 33, l. 7-18; p. 35, l. 3-16; p. 36, l. 13-18; p.37, l.12-15; p. 39, l. 16-23).

When asserting prognosis, a medical expert is not expected to express his or her opinion with the same medical certainty required to address causation issues. Boyle, 170 A.2d at 867; see also Griffin, 950 A.2d at 1000. Despite same, Dr. Leggat testified that all of her opinions are to a reasonable degree of medical certainty. ( See Docket No. 98-2 at 4).*fn9

Therefore, the Court finds that Dr. Leggat's testimony regarding Plaintiff's increased risk of developing future injuries as a result of her total hysterectomy is admissible at trial. Accordingly, Defendant Hospital's Motion in Limine to Preclude Plaintiff from Introducing any Evidence concerning Increased Risk of Harm [66] is DENIED.

Nora Barry Fischer United States District Judge

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