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September 22nd, 2025
In Lewis v. Reading Hospital, 2025 PA Super 191 (September 2, 2025), the Pennsylvania Superior Court vacated a $869,000 judgement because counsel told the jury that the defense was unable to retain causation expert, and because the trial court gave an instruction and verdict form to the jury that equated the negligence element of factual cause with an “increased risk of harm.”
Lewis underwent vascular surgery by Dr. Luo to repair abdominal aortic aneurysms at Reading Hospital. Following surgery, Lewis complained of severe pain, swelling, and discoloration in his left foot. Dr. Luo determined that Lewis suffered from ischemia but did not think there was a viable surgical or medicinal means of correcting the problem; therefore, he elected to monitor Lewis. Three weeks later, Lewis developed gangrene of his left foot, which had to be amputated.
During litigation, Lewis’ expert, Dr. Wu opined that Dr. Luo was negligent for not administering anticoagulant medications, and that such negligence increased the risk of harm, and played a role in causing the need for amputation. The Defendants’ vascular expert, Dr. Wun opined that the use of blood-thinning medications would not have prevented the need to amputate Lewis’ foot and could have worsened Lewis’ outcome. The Court ordered Dr. Wun to identify the medical literature to support his opinion, but Dr. Wun failed to do so. Ultimately, the trial court precluded Dr. Wun from offering any expert opinions.
In his opening statement, Lewis’ counsel told the jury that despite more than 3,000 vascular surgeons in the United States, the defense was not going to produce the testimony of a vascular surgery expert at trial. The trial court declined the Defendants’ motion for a mistrial but gave the jury several curative instructions that counsel’s statements were not evidence. Citing Siegal v. Stefanyszyn, 718 A.2d 1274 (Pa. Super. 1998), the Defendants argued that a cautionary instruction was insufficient to cure the prejudice of an improper remark about the lack of an expert opinion witness. However, the trial court felt that the present case was distinguishable from Siegal.
During the court’s conference regarding jury instructions and jury verdict form, the trial court’s charge repeatedly instructed that Defendants were liable if the jury found that their negligent conduct resulted in actual harm to Lewis or an increased risk of harm. The Defendants objected to the “addition of increased risk to the factual cause discussions” on the record after the charge conference, and the objection was overruled. The jury verdict form asked:
Was the negligence of those Defendants you have found to be negligent, a cause of harm or an increased risk of harm to the Plaintiff?
Ultimately, the jury issued a verdict in Lewis’ favor in the amount of $869,000.
On appeal, the Superior Court held that no instruction could undo the prejudice caused by misleading the jury about the absence of expert testimony, especially when that absence was due to the court’s own preclusion ruling.
A party who succeeds in excluding evidence on legal grounds may not mislead the jury by telling it that such evidence never existed in the first place. See e.g., Siegal, 718 A.2d at 1277. But, where the absence of evidence does not result from a court ruling, a party has more leeway to emphasize that fact to the jury as being indicative of a weakness in an opponent’s position. See e.g., Steltz v. Meyers, 265 A.3d 335, 348 (Pa. 2021). “There are certain instances where the comments of counsel are so offensive or egregious that no curative instruction can adequately obliterate the taint.” Siegal, 718 A.2d at 1277. Here, the Superior Court concluded that there were no curative instructions that could have adequately cured the prejudice of counsel’s improper remarks.
The Superior Court also determined that 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 fact-finder to link the defendant’s conduct to the plaintiff’s harm, 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:
[S]uch 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)). Ultimately, the Superior Court concluded that 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 Plaintiff’s burden of proving Defendants’ liability, depriving them of a fair trial.
The Superior Court’s opinion in Lewis v. Reading Hospital, 2025 PA Super 191 (September 2, 2025) can be accessed here.
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