Rolon, F. v. Davies, T., 232 A.3d 773

Background

April 30, 2010: Decedent underwent emergency hemicolectomy. May 19, 2010: she presented to LGH ER with right-leg pain, swelling, blue discoloration, and weaker pulse.
ER physician Dr. Davies ordered a venous ultrasound read by radiologist Dr. Wiggins showing no DVT in the lower leg but slow flow suggesting a more proximal problem; Wiggins recommended further testing.
Surgeon Dr. Voystock ordered an arterial study (negative); Decedent improved on bedrest and was discharged, collapsed shortly after and died; autopsy showed pulmonary embolism.
Appellant sued for medical malpractice (filed March 2012). At trial (Oct. 2018) plaintiff’s expert, Dr. Campbell, testified that a pelvic DVT should have been investigated and that immediate anticoagulation would more likely than not have reduced the risk of death.
At the close of plaintiff’s case, Dr. Voystock moved for and received a nonsuit (Oct. 19, 2018); jury returned defense verdicts for the other defendants; trial court denied post-trial motion to remove nonsuit. Appellant appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dr. Voystock’s nonsuit should be entered because plaintiff’s expert failed to give opinion to a reasonable degree of medical certainty	Rolon: Dr. Campbell testified to a reasonable degree of medical certainty that Voystock breached the standard of care and that failure to diagnose/treat a pelvic DVT more likely than not caused death	Voystock: Campbell equivocated, used conditional language, and relied on non‑definitive phrases and out‑of‑state phrasing ("more likely than not"), making his opinion speculative	Reversed nonsuit as to Voystock: Court held Campbell’s testimony, read in full, met the required degree of medical certainty and raised a jury issue
Whether plaintiff established a prima facie malpractice case against Voystock	Rolon: duty, breach (failure to evaluate pelvic DVT), and proximate causation (anticoagulation would more likely than not have reduced risk of death)	Voystock: evidence insufficient to show breach or causation beyond speculation	Court: plaintiff presented sufficient prima facie evidence; nonsuit erroneous
Scope of retrial after nonsuit reversal — all defendants or only nonsuited defendant(s)?	Rolon: sought new trial generally (asked for new trial against all parties)	Other defendants: argued their acquittals should stand; retrial should be limited to the nonsuited defendant(s)	Court: reversed nonsuit and ordered a new trial only as to Voystock and his practice; affirmed defense verdicts for all other defendants (following Meyer and distinguishing Westinghouse and Eck)

Key Cases Cited

Vicari v. Spiegel, 936 A.2d 503 (Pa. Super. 2007) (expert testimony must be evaluated in its entirety; experts need not use "magic words" but may not be merely speculative)
Griffin v. Univ. of Pittsburgh Med. Ctr.-Braddock Hosp., 950 A.2d 996 (Pa. Super. 2008) (an opinion allocating probabilities like 51% vs. 49% insufficient to prove causation to reasonable degree of medical certainty)
Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022 (Pa. Super. 2001) ("more likely than not" phrasing can be insufficient when expert opinion remains speculative)
Smith v. Grab, 705 A.2d 894 (Pa. Super. 1997) (a defendant’s conduct need only be shown to have increased the risk of the harm; causation is for the jury)
Commonwealth v. Spotz, 756 A.2d 1139 (Pa. 2000) (courts should assess substance of expert testimony, not reliance on particular words)
Meyer v. Heilman, 469 A.2d 1037 (Pa. 1983) (retrial after reversal of nonsuit does not automatically require retrial against co‑defendants; jury findings for exonerated co‑defendants generally stand absent special circumstances)
Westinghouse Elevator Co. v. Herron, 523 A.2d 723 (Pa. 1987) (in exceptional circumstances—e.g., loss of counsel prejudicing defense—a retrial may properly include all parties)
Eck v. Powermatic Houdaille, 527 A.2d 1012 (Pa. Super. 1987) (noting courts often grant new trials generally, but context matters)