Lewis v. Reading Hosp., 2025 Pa. Super. LEXIS 398 (September 2, 2025) Stabile, J.
Judges: BEFORE: BOWES, J., OLSON, J., and STABILE, J.
OPINION BY STABILE, J.:
In this medical malpractice action, Reading Hospital, Robert Q. Luo, M.D., Tower Health Medical Group (defendants/Appellants) were found liable for the injuries sustained by Ronald Lewis (plaintiff/Appellee) after he underwent vascular surgery in 2021. A jury found that Appellants had negligently deviated from the standard of care when providing post-operative treatment. Appellee was awarded $869,000 in damages. Appellants now contend that the verdict must be vacated because the trial court erred in (1) excluding their expert witness on causation; (2) failing to grant a mistrial after Appellee’s counsel told the jury that the defense was unable to retain an expert on causation; (3) allowing Appellee’s expert witness to testify that he had once been retained in an unrelated case as an expert by Reading Hospital; and (4) giving an instruction and verdict form to the jury which equated the negligence element of factual cause with an “increased risk of harm.” Finding merit in Appellants’ second and fourth claims, we vacate the order on review and remand the case for a new trial on those grounds.
On April 6, 2021, Appellee, at the age of 72, underwent open vascular surgery at Reading Hospital for the purpose of repairing abdominal aortic aneurisms. Dr. Luo performed the surgery, and soon after it was completed, Appellee reported severe pain, swelling, and discoloration in his left foot. It would soon become evident that Appellee’s post-surgery symptoms were due to a lack of blood flow (ischemia). One likely cause of that type of ischemic injury was the loosening of plaque (micro-emboli) from Appellee’s diseased arteries during his vascular surgery.
Rather than treat the ischemic injury immediately after the manifestation of Appellee’s symptoms, Dr. Luo opted to monitor him to better ascertain whether and to what extent tissue from his foot would have to be removed. Dr. Luo believed that there was no viable surgical or medicinal means of remedying the underlying ischemic injury.
Appellee was only prescribed an antibiotic medication to address a possible bacterial infection resulting from an apparent burn on Appellee’s left foot which was unrelated to the vascular surgery.
Within three weeks of Appellee’s surgery, his left foot developed gangrene and had to be amputated. Appellee filed a complaint on September 6, 2022, alleging that Dr. Luo had been negligent in treating his post-surgery ischemic injury, resulting in the amputation. Reading Hospital and Tower Health Medical Group were alleged to be vicariously liable for Dr. Luo’s negligence. Appellants timely filed an answer and new matter. Appellee then filed a reply to new matter.
An expert may not testify “as a mere conduit or transmitter of the content of an extrajudicial source.” Sheely v. Beard, 696 A.2d 214, 218 (Pa. Super. 1997). Under Pennsylvania Rule of Evidence 705, “[i]f an expert states an opinion the expert must state the facts or data on which the opinion is based.” Pa.R.E. 705. “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” Pa.R.E. 703.
The usual test for qualifying a witness to testify as an expert is whether the witness has a “reasonable pretension to specialized knowledge on the subject under investigation.” Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995). “An expert opinion may be based on inadmissible facts or facts not in evidence, including other expert opinions and hearsay statements, as long as such facts are of a type reasonably relied on by experts in that profession used to form an opinion.” Carletti v Commonwealth Dept. of Trans., 190 A. 3d 766, 778 (Pa. Cmwlth. 2018); see also Pa.R.E. 703 (same). The proper method for testing the bases of an expert’s opinion is voir dire and cross-examination. See Primavera v. Celotex Corp., 608 A.2d 515, 520 (Pa. Super. 1992); see also Mitchell v. Shikora, 209 A.3d 307, 319 (Pa. 2019).
In the present case, the record is insufficiently developed to allow for meaningful merits review of Appellants’ first claim. The trial court precluded Dr. Wu from testifying as an expert because, in his first two pre-trial reports, he did not specify the source of the medical studies or other experts’ opinions which informed his own conclusion that an anticoagulant medication would have been more harmful than helpful to Appellee. However, at the hearing on Appellants’ motion for reconsideration of the order precluding Dr. Wu’s expert opinion, the trial court indicated that it had not read the most recent supplemental report attached to Appellants’ motion.
Significantly, in that latter report, Dr. Wu stated that his expert opinion regarding the efficacy of an anticoagulant was not based on any medical studies or the opinions of other experts. He asserted that his opinions were only based on his “education, training, and clinical experience as a vascular surgeon and upon review of the medical records, documents provided, and facts in this case[.]” Memorandum of Law in Support of Motion for Reconsideration of the April 2 and 9, 2024 Orders Preluding Expert Testimony by Dr. Wun.
The trial court, in its 1925(a) opinion, did not refer to the content of Dr. Wun’s final report, much less indicate how it would have ruled on this issue had it realized that Dr. Wun omitted the problematic references to authority supporting his opinion. Ordinarily, to facilitate meaningful appellate review, we would try to perfect the record by remanding the case back to the trial court for additional findings or a supplemental 1925(a) opinion. Since, as will be discussed in greater length below, a new trial is being granted on other grounds, such directives are not needed.
Appellants’ second claim is that the trial court erred in denying a new trial to remedy a comment by Appellee’s counsel in the opening statement that Appellants did not, or more accurately, could not, produce a favorable expert witness on the subject of causation.
Appellee’s counsel inexcusably took advantage of the order excluding the expert’s opinion to suggest a highly prejudicial falsehood to the jury. In the opening statement, counsel falsely represented that there was not a single vascular surgeon in the country who was willing to opine in favor of Appellants. This misrepresentation tainted the trial at its inception, as it conveyed to the jury that Appellants’ case was baseless and fatally flawed based on a premise that was objectively untrue.
The jury could easily have attributed undue weight to counsel’s comment from the outset before it heard any trial evidence. This was especially so where the comment pertained to expert testimony. Courts have long recognized that expert testimony regarding factual issues of causation will often prove critical in medical malpractice actions because such matters are typically far beyond a layperson’s understanding. See generally Grossman v. Barke, 868 A.2d 561, 566-57 (Pa. Super. 2005). Indeed, in cases where the plaintiff has alleged a breach of the standard of medical care, an expert’s opinion is required, as the absence of such testimony would leave the jury with “no basis other than conjecture, surmise or speculation upon which to consider causation.” Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1149 (Pa. 2003) (quoting Woods v. Brumlop, 377 P.2d 520, 523 (N.M. 1962)).
Counsel’s suggestion that Appellants could not find a single expert to rebut the opinion of their own expert most assuredly could have handicapped Appellants’ ability to defend against Appellee’s claims.
Accordingly, as in Siegal, the prejudice of counsel’s remark in this case was too great to be remedied by an instruction. See Siegal, 718 A.2d at 1277. Moreover, while the trial court correctly attempted to mitigate the prejudice of counsel’s remark by telling the jury that statements by counsel are not evidence, we do not find that the generic nature of that cautionary instruction adequately compensated for the falsehood related by counsel. To attempt to adequately mitigate counsel’s remarks, the trial court needed to help the jury appreciate, at a minimum, that the statement was false. The trial court did not do so, and regardless, since an instruction could not have cured the prejudice of counsel’s improper remark, the trial court abused its discretion in denying Appellants’ motion for a mistrial. See Siegal, 718 A.2d at 1277; see also Poust, 940 A.2d at 385; Mirabel, 57 A.3d at 151.
Appellants’ third claim is that the trial court erred in permitting Appellee’s expert witness, Dr. Wu, to disclose the fact that Appellant, Reading Hospital, had once retained him as a witness in another trial.
Here, we find that the trial court did not abuse its discretion in allowing Appellee to disclose to the jury the fact that Dr. Wu had been retained as an expert by Reading Hospital in an unrelated matter. Dr. Wu’s experience in that regard was relevant to his qualifications and experience. It also arguably showed that he had no bias against Reading Hospital, making him more credible as a witness giving testimony favorable to that party’s opponent.
With respect to the balancing test under Rule 403, it difficult to see how the admission of this evidence could have unduly prejudiced Appellants. The underlying facts of the prior case involving Reading Hospital were not disclosed to the jury. Moreover, Dr. Wu testified that he routinely served as an expert on behalf of both plaintiffs and defendants in malpractice actions. So, there was nothing unusual about Dr. Wu testifying for Reading Hospital in one case, and then for Appellee in another. There were no facts on the record which would have reasonably led the jury to rely on that evidence to draw any negative inferences against Appellants. As we discern no abuse of discretion on the part of the trial court in admitting Dr. Wu’s testimony about his past experience as Ready Hospital’s expert witness, no relief is due on that issue.
Appellants’ fourth and final claim is that the trial court erred in providing the jury with instructions and a verdict form which misstated the causation element of negligence, allowing Appellants to be found liable without a determination by the jury that their negligent conduct was a factual cause of Appellee’s injuries. Before evaluating the merits of this claim, we must determine if it was sufficiently preserved for appellate review or waived as Appellee and the trial court have asserted.
Medical malpractice is a form of negligence that may be proven when the following elements are satisfied:
(1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm.
Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1030 (Pa. Super. 2001)
The causation element of a medical malpractice cause of action does not require proof that the defendant’s conduct was a “but-for” cause of the plaintiff’s damages. See id.; see also Winschel v. Jain, 925 A.2d 782, 788-89 (Pa. Super. 2007). Courts have referred to an “increased risk of harm” analysis as a “relaxed standard” which lessens “the degree of certainty ordinarily required of a plaintiff’s evidence to provide a basis for causation.” Mitzelfelt, 584 A.2d at 894. “A plaintiff is entitled to an instruction on increased risk where there is competent medical testimony that a defendant’s conduct at least increased the risk that the harm sustained by the plaintiff would occur.” Klein v. Aronchick, 85 A.3d 487, 495 (Pa. Super. 2014).
Critically, though, an “increased risk of harm” should not be equated with factual (proximate) cause. A finding of increased risk of harm instead functions as a means of allowing the factfinder to link the defendant’s conduct to the plaintiff’s harm, even in certain contexts, such as a medical malpractice action, where it might be impossible to establish that an act or omission by a physician directly caused, or was a “but-for” cause of a patient’s harm:
Such evidence [of increased risk of harm] furnishes the basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.
Sutherland v. Monongahela Valley Hosp., 856 A.2d 55, 60 (Pa. Super. 2004) (quoting Hamil v. Bashline, 392 A.2d 1280, 1288 (Pa. 1978)).
As cogently stated in the passage quoted directly above, a finding of an increased risk of harm is not equivalent to a finding of factual (proximate) cause. See id. Once a finding of increased risk of harm has been made, the factfinder must “go further” and determine by a preponderance of the evidence whether the increased risk of harm was “in turn a substantial factor” in bringing about the plaintiff’s injuries. See Winschel, 925 A.2d at 789 (citing Carrozza v. Greenbaum, 866 A.2d 369, 380-81 (Pa. Super. 2004)); see also Rohon v. Davies, 232 A.3d 773, 777 (Pa. Super. 2020) (to establish proximate cause, an expert must show with a reasonable degree of certainty that the defendant physician’s “conduct increased the risk of harm actually sustained, and the jury then must decide whether the conduct was a substantial factor in bringing about the harm.”).
This two-part inquiry by the factfinder directly applies in the context of medical malpractice actions in which the asserted negligence takes the form of delayed treatment. See Winschel, 925 A.2d at 789. For example, although timely detection of breast cancer may well reduce the likelihood that the patient will have a terminal result, even with timely detection and optimal treatment, a certain percentage of patients unfortunately will succumb to the disease. This statistical factor, however, does not preclude a plaintiff from prevailing in a lawsuit. Rather, once there is testimony that there was a failure to detect the cancer in a timely fashion, and such failure increased the risk that the woman would have either a shortened life expectancy or suffered harm, then it is a question for the jury whether they believe, by a preponderance of the evidence, that the acts or omissions of the physician were a substantial factor in bringing about the harm.
Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990) (Emphasis added); see also Cohen v. Kalodner, 345 A.2d 235, 237 (Pa. Super. 1975) (affirming denial of instruction in malpractice case because it implied “that appellant can recover by proving only negligence and increased risk of harm.”).
In the present case, Appellee was entitled to an instruction on “increased risk of harm” because he presented the competent expert testimony of Dr. Wu that Appellants’ conduct increased the risk that the harm sustained by Appellee would occur. However, while Appellee was entitled to this instruction, it still was incumbent upon Appellee to prove, and upon the trial court to so charge, that an increased risk of harm was a factual cause of his injuries. By repeatedly equating an increased risk of harm with factual cause in both the jury charges and the verdict form, the trial court’s instructions were erroneous and improperly eased.
In section 14.20 of the current version of the Pennsylvania Suggested Standard Civil Jury Instructions, it is not recommended for the jury to be charged on whether a party’s conduct is a “substantial factor” in bringing about the plaintiff’s harm. Rather, it is only recommended that the jury be advised instead on whether the defendant’s conduct was a “factual cause” of the harm. Pa. SSJI (Civ) § 14.20, Medical Malpractice — Suggested Special Jury Interrogatories. Similarly, section 14.160 provides that, in medical malpractice actions, the jury should only be asked in the verdict form whether the negligence of the defendants was “a factual cause of any harm to the plaintiff?” Pa. SSJI (Civ) § 14.160, Medical Malpractice — Suggested Special Jury Interrogatories. This suggestion attempts to avoid the confusion that might be created by attempting to explain to a jury the concept of a “substantial factor”. The use of “factual cause” however does not appear to be inconsistent with well-established law that refers to “substantial factor” in a negligence action.
We find the general-verdict rule inapplicable here for two reasons. First, the general-verdict rule only serves to bar challenges to a verdict as to two or more issues when a defendant has failed to request a special verdict form clarifying the factual theory on which its verdict is based. See Cowher, 283 A.3d at 804 (citing Halper, 963 A.2d at 1288-89). Here, Appellants in fact objected to the verdict form given to the jury precisely because it equated a finding of increased risk of harm with factual cause. The record also reflects that Appellants proposed a verdict slip, not accepted by the trial court, that did not equate an increased risk of harm with factual cause.
Second, this is not a case where the jury returned a general verdict based upon multiple theories of negligence. Rather, Appellee alleged in his complaint a single cause of action for negligence premised upon the sole theory that “The negligence and recklessness of Defendants, acting individually and by and through their agents, servants, and employees, as described herein, increased the risk of harm to Ronald Lewis and was a substantial factor in causing his catastrophic injuries and losses.” Complaint, 9/16/2022, at ¶76. Regrettably, as explained above, the instruction and verdict form incorrectly reflected this theory because they allowed the jury to find liability based only upon an increased risk of harm without also requiring the jury to find that the increased risk of harm was a factual cause of Appellee’s injuries. See Cowher v. Kodali, 283 A.3d 794, 804 (Pa. 2022) (citing Shiflett v. Lehigh Valley Health Network, Inc., 217 A.3d 225, 234 (Pa. 2019)) (general-verdict rule will only bar a challenge to a general verdict where “the verdict rests upon valid grounds[.]”).
Thus, due to the trial court’s error in charging the jury on the element of causation and the prejudicial remarks by Appellee’s counsel, Appellants must be granted a new trial.
Order vacated. Case remanded for further proceedings. Jurisdiction relinquished.
• Verdict was vacated because the trial court erred in excluding expert witness on causation
• For failing to grant a mistrial after Appellee’s counsel told the jury that the defense unable to retain an expert on causation
• Allowing Appellee’s expert witness to testify that he had once been retained in an unrelated case as expert by Reading Hospital. (Not a reason for the mistrial) and giving an instruction of verdict form to the jury which equated the negligence element of factual cause with “increased risk of harm.”
• The court found merit in the second and fourth claims and vacated the verdict and granted a new trial.
• So, the two reasons why a new trial was granted: was fair to grant a mistrial after the Appellee’s counsel told the jury that the defense was unable to retain an expert on causation and for giving an instruction of verdict form to the jury which equated the negligence element of factual cause with “increased risk of harm.”
• The court relied heavily on the standing jury instructions.
• The court discussed the increased risk of harm.
• The court discussed the basis of an opinion and the difference between a Frye motion and inadequate testimony.
• The court was not happy about the lack of authority to support expert’s opinion but since it was granting a trial on other basis, it is not granting a trial on this basis alone.
• The attorney suggested a falsehood to the jury by saying that no expert could be retained by the other side.
• This case indicated that the concept of medical malpractice must show physicians duty to patients; physicians breach of duty; the breach of duty was the proximate cause of the substantial of factor of bringing resultant harm and for the damages suffered by the patient were a direct result of that harm.
• The court quoted from section 14.20 of the Pennsylvania State Standard Jury Instructions.
• The use of “factual cause” does not appear inconsistent with the well-established law that refers to “substantial factor” in a negligence action.
• The court basically says that substantial factor and factual cause are the same.
• Increased risk of harm still requires the finding of causation.
